Lord Bridges of Headley
The Parliamentary Secretary, Cabinet Office (Lord Bridges of Headley) (Con)
My Lords, I start by thanking those who have helped us reach a modicum of consensus—I should probably stress the word modicum, as I do not want to tempt fate—in particular the noble Baroness, Lady Hayter, with whom I have had several conversations, along with her colleagues on the Front Bench and the noble Lord, Lord Stoneham.
A number of legitimate concerns have been expressed about how far reaching these provisions relating to this clause will be and how they might be implemented. The Government have listened to these concerns and, to address them, have acted in a variety of ways.
First, we produced a clear list of bodies that will be in scope. We used the Freedom of Information Act as a starting point for this and, as I committed to do on Report, we have now shared this list with the House as part of the draft regulations. However, I clarify again that the scope of facility time transparency will mean that it applies only to organisations with 50 or more employees and at least one trade union official. Those bodies that do not meet these criteria may exclude themselves from the facility time transparency measures.
Secondly, there was equally legitimate concern about the need to ensure that we are clear which organisations may be in scope. In particular, several noble Lords were concerned about the provisions applying to organisations only partly funded by public funds. The Government agree that that is a legitimate concern and, with that in mind, I now put forward an amendment that would ensure that only those public sector bodies mainly funded by public funds could come within the scope of regulations made under Clause 13(9). I know that that change was important to a number of your Lordships.
Thirdly, we have also brought forward Amendments 5 and 7, which will ensure that any exercise of the power in Clause 13(9) will be by way of the affirmative resolution procedure. This should provide the assurance that a number of your Lordships sought—namely, that inclusion in regulations of bodies that are not public authorities but are performing functions of a public nature will come about only once both Houses of Parliament have expressly so agreed by affirmative resolution.
Let me now address a specific concern raised by the noble Baroness, Lady Hayter, regarding the scope of this clause and Clause 14, and the possible impact on charities. As I have said before, none of us wishes those clauses to apply to what I would call a typical charity—for example, Oxfam and charities of the type that fall outside what I would loosely refer to as the core public sector—or a relatively small charity performing laudable work in the community, such as tackling homelessness or addiction. As the noble Baroness, Lady Hayter, highlighted, some of those charities might—might—receive most of their revenue in one year from the public purse. The Government agree that we need to give them the comfort that, were that ever to be the case, they would not and could not come within the scope of these provisions. I therefore committed on Report to continuing to work with officials and the noble Baroness to devise an approach to alleviate and address those concerns.
I now confirm that the Government are committed to ensuring that regulations made under the extension powers in Clauses 13 and 14 capture only those charities that could be captured by the Freedom of Information Act and its Scottish equivalent and are also mainly funded by public funds. In future, if a charity met both of those criteria, Parliament would properly scrutinise whether the scope of the regulations should be extended to them, and this would be done via affirmative resolution. Therefore, because I know just how important this issue is to noble Lords, I will ensure that we will not use the powers to capture a charity that the Freedom of Information Act and Scottish equivalent could not also capture.
I believe that we have given due consideration to your Lordships’ concerns regarding the scope of the clause. We have reflected on many of these matters, the Government have made amendments to discharge noble Lords’ misgivings, and we hope that your Lordships will support the amendments.
Baroness Hayter of Kentish Town (Lab)
My Lords, I thank the Minister for introducing the amendments, each of which we are pleased to support. In doing so, I recognise the movement that the Government have made—particularly from “partly” to “mainly”.
We should, however—the Minister is right to smile—read the amendments on the scope of facility time and check-off restrictions in the Bill in the context of the helpful, albeit slightly belated, letter that I received from him late on Friday, which I imagine is also in the Library, and which outlines which organisations will be caught by the provisions. In the light of that 15-page draft, a skeleton regulation which would give effect to the mandatory reporting on facility time and the restriction of an employer’s freedom to operate check-off, I fear that I have seven questions for the Minister.
First, have the 255 bodies listed in the draft regulations, which are about to find themselves caught by them, been consulted? Secondly, why is the Legal Services Board on the list? It does not get government money, being funded by a levy on lawyers, and should therefore be excluded, alongside the Gambling Commission, by virtue of the third of the Government’s exclusions, as set out at the top of the second page of the Minister’s letter of Friday 22 April. When this House accepted the Legal Services Act 2007, it felt it important that the Legal Services Board should be independent of government for international as well as domestic reasons. Its inclusion in a list of bodies, restricting its managerial freedom, could be of concern.
Thirdly, the list refers to the proprietor of an academy under the 2010 Act. Given that the Government are now threatening that all schools should become academies, despite the resistance of many Conservative MPs, to say nothing of that of head teachers, governors and parents, particularly of primary schools, will the Minister clarify whether, should that White Paper find its way into the Queen’s Speech, any forced new academies would be covered by this provision?
Fourthly, with regard to charities—and I thank the Minister for our discussions on this and for what he said today—would housing associations be covered under his definition? The Minister made what appears to be a useful statement today and in his letter: it is not the Government’s intention to include organisations which the general public would consider to be charities—such as Oxfam or others doing valuable charitable work funded by the public purse—within the scope of the Bill. However, the letter also states that the “starting point for scope on public bodies captured remains those public authorities in the Freedom of Information Act”.
Given the reports last year that Matt Hancock, the Cabinet Officer Minister, was considering extending freedom of information into the charitable sector, will the Minister confirm that the Government have dropped that idea or at the least confirm that even if it were to be resurrected, the Government would still exclude charities of the sort he described from these facility time and check-off provisions? The Minister has kindly had discussions with us about charities, but there remain problems within the sector and concern about the definition. Will he therefore look again, as we asked before, and give some comfort by using words to define the exclusion, such as: “charities, regardless of their funding arrangements, which are independent organisations that have satisfied the public benefit test and are regulated by the Charity Commission.”? This would not cover the exempt charities, such as universities, which are regulated by another body. That would give comfort, should freedom of information be extended in a way that has not been covered by what the Minister said today.
Fifthly the breadth of the scope on facility time, in particular the inclusion of public broadcasters, including the BBC, and arts bodies, such as the British Museum and the Tate, continues to concern us. What is the justification for intervening in such beacons of independent and artistic freedom? The Minister no doubt saw the amazing tribute to Shakespeare from Stratford on Saturday night. It must have involved lots of discussions of safety, overtime, copyright and performance rights. Is he content these would all need documenting before the show could go on?
Sixthly, with regard to the detail that employers will have to document on facility time, we remain concerned about both the onerous—indeed, “burdensome” is the word—amount of red tape and the bureaucracy involved, as well as about how much information employers will have to demand of union reps about how they spend their time, often encroaching on to confidential or contentious matters. For example, the draft skeleton regulations require employers to provide a breakdown of the proportion of facility time spent on different union duties. They list them: health and safety, redundancies, TUPE, collective bargaining, training, and representation in grievances and disciplinary hearings. This means union reps having to disclose that to employers, but those amounts of time will vary on a weekly basis, and in many workplaces it will be difficult for employers to decide what counts as time spent on collective bargaining as opposed to time spent on redundancy, on TUPE or on training, because these activities often take place at the same time, including when a lay official meets with a full-time union official or the employer to discuss a basket of issues.
Lord Tyler (LD)
My Lords, I want briefly to contribute on this set of amendments to welcome, on behalf of my colleagues, the way in which the Minister has responded to our request last week to ensure that we saw the draft regulations. In particular, he has addressed the issue of the affirmative and negative procedures, and I am delighted to see in Amendment 7 that he has opted for the affirmative procedure.
However, I have a similar concern to that of the noble Baroness, Lady Hayter, on the issue of the cross-reference to the freedom of information legislation. As she and I are well aware, it is, we suppose, currently still under review. We therefore need to know whether the list of those organisations that are included in that legislation is as now or as it might be in the future. Would it not be a sensible compromise—perhaps the Minister could give us this assurance—that the cross-reference should be to those organisations that are included at the time of Royal Assent to this Bill and therefore relevant to this section of this Bill, in terms of facility time and indeed of check-off? It would be rather peculiar if, as it were, the Minister anchored himself into something that was on the move, and we therefore found ourselves in a period of less transparency, less credibility and less definition rather than, as I think was his intention, greater clarity.
Lord Bridges of Headley
My Lords, I thank the noble Baroness, Lady Hayter, and the noble Lord, Lord Tyler, for those very acute contributions. I apologise to them for not getting the letter to them sooner. However, I am grateful for the welcome that it has received. The noble Baroness, with her customary acuteness and accuracy, has shot seven Exocets across my bow on this. I shall attempt to answer them, and if I fail to do so then obviously I shall write to the noble Baroness and the noble Lord and put the letter in the House Library.
Have the 255 bodies been consulted? We will be discussing these with all these bodies as we proceed towards implementation. As regards specific bodies, the noble Baroness has clearly picked on a few here. I shall write to her as regards the Legal Services Board. We have been working very hard to try to make sure that the list is as accurate as possible—I stress that this is a draft—but I quite understand your Lordships when they say that that is not altogether satisfactory, and I am grateful to the noble Baroness for drawing my attention to the Legal Services Board. As regards academies and housing associations, those bodies will be covered if they meet the provisions as set out. I shall write with complete accuracy to the noble Baroness on those two points—but, as regards academies, my understanding is that they would be covered if they met the provisions.
The noble Lord, Lord Tyler, and the noble Baroness referred to the FOIA, and whether or not we might be looking at these issues. I stress that the FOIA was based as a starting point. Clearly, there is the double lock of not just being on the FOIA but being mainly funded. I shall look again at the words—I make no commitment about this, I am sorry to say—but I am unable to do so right now. The noble Baroness made some suggestions about wordings and the noble Lord made some suggestions about where we might be in future. I shall write to them both about those specific points, but I cannot make any commitments to change right now. However, I repeat that those are good points.
As regards the burdens, I heed what the noble Baroness has to say. As we saw in the previous exchange, when my noble friend discussed the previous amendment, this Government wish to ensure that we do not unnecessarily add to burdens. I stress that the information required for publication is a narrow and reasonable range, similar to that which, for example, English local authorities publish as part of the Local Government Transparency Code and which the Department for Education recommended that all schools publish in its 2014 guidance.
I shall end on that point. I commit to write to the noble Baroness.
Lord Bridges of Headley
Lord Bridges of Headley
“(1) A relevant public sector employer may make deductions from its workers’ wages in respect of trade union subscriptions only if—(a) those workers have the option to pay their trade union subscriptions by other means, and(b) arrangements have been made for the union to make reasonable payments to the employer in respect of the making of the deductions.(1A) Payments are “reasonable” for the purposes of subsection (1) if the employer is satisfied that the total amount of the payments is substantially equivalent to the total cost to public funds of making the deductions.”
Lord Bridges of Headley
My Lords, following our positive discussions in your Lordships’ House on Report, I am amending Clause 14 as I promised, to reflect an arrangement whereby check-off continues within the public sector on the crucial proviso that there is no burden on the taxpayer.
There was one concern, which concerned the Certification Officer’s role. While I appreciate the sentiment of my noble friend Lord Balfe and others, the Government believe that it is not the role, and should not be the role, of the trade union regulator to assess the reasonableness of the cost to employers and unions of check-off. However, it is important that these costs are indeed reasonable. So we have set out on the face of the Bill that employers must satisfy themselves that the total amount of the payment is only substantially equivalent to the total cost to the taxpayer of making these deductions.
I stress that the amendments regarding those organisations within the scope of this Bill apply equally to Clause 14 as they do to the facility-time transparency clause. This means that, were the scope to be extended in future, it could apply to bodies which are not public authorities only if they are mainly funded by public funds. To be absolutely clear, it is not the intention of this Government ever to include charities if they could not also be captured by the Freedom of Information Act.
I assure your Lordships that we will, of course, give adequate timeframes for new charging arrangements to be set up. It is our intention to provide a 12-month period prior to commencement for such arrangements to be properly established. I appreciate the co-operation of the noble Baroness and others and I beg to move.
Lord Balfe (Con)
My Lords, I very much welcome this clause. It represents common sense and shows that the Minister has listened to the representations that have been received.
I do not intend to speak again during this debate but I will pick up on a point made earlier by the noble Lord, Lord Collins, who mentioned twice that he had been to an USDAW conference. I am sure that he had a very good welcome there. I was a member of USDAW for a few years, when I worked for the Co-op. I will place on the record that the understanding of the trade union movement would be much enhanced in the political comity of Great Britain if the unions extended invitations to their conferences beyond just one political party. One of the difficulties, which has been seen in the Bill and is seen in other places, is that although 30%-plus of trade unionists vote Conservative and a good number vote for the Liberal Democrats and the nationalist parties, the trade unions persistently seek to relate to only one political party. It would be for the good of the trade union movement and that of the noble Lords sitting opposite if the union movement could be persuaded to look a little beyond its comfort zone and to engage with all legislators. That could possibly avoid many of the misunderstandings that have occurred in the past. Having said that, I welcome the clause; it is a very good step forward and I thank the Minister for his introduction of it.
Lord Bridges of Headley
My Lords, I start by echoing the thanks to my noble friend Lord Balfe for his contribution to the Bill. I should have included his name at the start. I, too, love paying a visit to the seaside: Blackpool, Bournemouth and Brighton—I do not think we should forget the other “B”s. His point about extending plans across the political divide when it comes to trade union conferences was very well made.
I turn to the points that have been raised and begin with the very good point that the noble Lord, Lord Pannick, made about enforcement. All public sector employers are expected to comply with the law and will have monitoring arrangements in place to ensure that such compliance happens. Failure to comply with a statutory duty is of course judicially reviewable, but personally I do not expect any responsible public sector employer to let non-compliance get that far before the matter is addressed.
I turn now to the points that the noble Baroness, Lady Wheeler, has made. Again, I apologise for not getting her the regulations sooner; I accept that that is not ideal. The noble Baroness made a very good point about consultation. This is why we need a year before the commencement of this, and we will of course wish to talk to bodies that are affected by it to make sure that it is run and introduced as smoothly as possible.
With regard to the point about scope and why smaller organisations are not excluded, the underlying principle is that there should be no burden on the taxpayer. As such, this clause applies to all those we consider public authorities for the purposes of the Bill. We accept that for small organisations the costs may be correspondingly smaller. However, they are still costs. If an organisation determines that the costs are truly negligible, we will have to trust those on the front line—that we need to trust those on the front line is a point that has been made by a number of your Lordships in the past—to make a sensible decision. They may decide to move a few members over time to direct debit, for example. However, and I stress this point, the organisations in scope are, in the main, subject to the FoIA, and must be prepared to respond to any FoI requests with regards to their check-off arrangements. I again stress that the bottom line is that we need to trust those on the front line.
Will we commit to a further impact assessment? Yes, we will. With that in mind, I beg to move.
Lord Bridges of Headley