Employment Rights Bill

Committee stage
Tuesday 10th June 2025 Lords Chamber

Committee (8th Day)

16:15

Relevant documents: 7th Report from the Constitution Committee, 20th Report from the Delegated Powers Committee. Northern Ireland legislative consent granted. Welsh and Scottish legislative consent sought.

Clause 56: Right of trade unions to access workplaces

Amendment 213AA

Moved by

[Lord Sharpe of Epsom]

213AA: Clause 56, page 78, line 15 at end insert—
“(2A) Where an access agreement relates to a hospital (within the meaning of section 275 of the National Health Service Act 2006), physical entry may be refused where—(a) patient safety, infection control, or clinical operations would be adversely affected,(b) the access purpose can reasonably be achieved by alternative means of communication, or(c) access would unreasonably disrupt urgent or time- sensitive medical activity.(2B) In determining whether access is reasonable in the context of a hospital, the Central Arbitration Committee must give significant weight to the factors set out in subsection (2A).”Member's explanatory statement
This amendment makes special provision for hospital workplaces, allowing physical access to be refused where it would impact patient safety, infection control, or clinical operations, or where access purposes can be met by alternative means. It requires the Central Arbitration Committee to give significant weight to these factors when considering access in hospital settings.

[Lord Sharpe of Epsom (Con)]

My Lords, this amendment would introduce necessary and proportionate safeguards to ensure that patient safety, clinical operations and infection control were not compromised by well-intentioned but potentially disruptive physical access to hospital environments by trade union representatives. Hospitals are not ordinary workplaces. They are places where critical decisions are made every minute, where vulnerable patients receive life-saving care and where medical professionals must operate in conditions that are tightly controlled in terms of both hygiene and procedure. Permitting physical access to union representatives who are not part of the clinical team and not governed by the same professional or ethical codes introduces risks that simply cannot be ignored.

These are not theoretical concerns. Infection control protocols exist precisely because hospitals deal daily with immunocompromised patients, open surgical wounds and the spread of dangerous pathogens. Entry by any individual not trained in and accountable to those protocols could result in the transmission of infections, the contamination of sterile areas or the unintended exposure of patients to harm. Moreover, hospital environments are highly sensitive to disruption. In intensive care units, emergency departments, operating theatres and maternity wards, even small delays or distractions can have life-or-death consequences. The presence of non-essential personnel in those spaces risks delaying clinical teams, congesting movement corridors, or interfering with time-critical procedures.

Physical access is not just a logistical matter; it can be a direct threat to a hospital’s ability to function safely and effectively. The amendment does not seek to deny trade unions the ability to communicate with members or fulfil their lawful functions. On the contrary, it would explicitly allow access to be withheld only where the access purpose could reasonably be achieved by alternative means; and in the 21st century, such alternatives, as we heard last week, are abundant. Virtual meetings, secure digital communications, designated liaison officers or scheduled engagement in non-clinical areas would all be viable channels for meaningful trade union engagement.

Hospitals are already under enormous pressure, so it is neither safe nor fair to expect them to open their most sensitive environments when those same objectives can be achieved by safer, more appropriate methods. Hospitals also bear legal and regulatory duties that cannot be suspended. Clinical professionals are legally obliged to safeguard patients and maintain secure environments. To require hospitals to grant physical access to non-clinical actors where such access could conflict with those duties would place hospital management in a difficult, nay impossible, position, risking litigation, regulatory sanction and, above all, the trust of the public.

The amendment further recognises the importance of proportionality. It does not seek to impose an outright prohibition; it would simply require the Central Arbitration Committee, when deciding on access disputes, to give significant weight to those clinical and operational factors. That is the right balance, respecting the legitimate role of trade unions while upholding the sanctity of hospital care. To oppose this amendment would be to ignore the distinct and high-stakes nature of hospital environments. No one disputes the value of union representation, but the right to organise must never override the duty to protect.

Hospitals are not platforms for industrial theatre; they are sanctuaries of healing staffed by professionals who need order, safety and focus to save lives. We have a duty to shield them from any policy that risks disrupting that mission. I urge the Committee to support the amendment and uphold the principle that access, however important, must never come at the expense of patient welfare. I beg to move.

[Lord in Waiting/Government Whip (Lord Katz) (Lab)]

I thank the noble Lord, Lord Sharpe of Epsom, for his amendment and I hope, perhaps, that the lack of contributions means that we will make some good progress in Committee today.

[Lord Sharpe of Epsom (Con)]

We have been making progress.

[Lord Katz (Lab)]

On the noise from a sedentary position, I mean in numerical terms, if not in substantive debate.

As the noble Lord, Lord Sharpe of Epsom, just outlined, Amendment 213AA seeks to makes specific provisions for access into hospital workplaces by specifying circumstances in which access may be reasonably refused. It also requires the CAC to consider and give more weight to these factors when deciding on access.

As we discussed last week, the Secretary of State will be able, through regulations, to set the circumstances that the CAC must take into account when making decisions on access, including potentially complex access arrangements in workplaces such as hospitals and other healthcare settings. These areas of detail will be subject to public consultation before the regulations are made and we will invite all interested parties to provide their views on these matters when we launch our consultation.

It is a complex policy area that will involve detailed practical considerations. It is not as though, at the moment, we do not have strong and healthy engagement with a number of different trade unions in all manner of healthcare settings, including hospitals. We have trade union access, involvement and activity in complex workplaces, including hospitals. Special consideration is given to the importance of keeping them sterile and safe, particularly for those who have immunocompromised conditions and, indeed, anybody who is a patient in that setting. This can and has been achieved, and it is perfectly reasonable for the CAC, following consultation, to make regulations that set this. As I said, this is not a policy area that is not already well rehearsed and understood.

The noble Lord, Lord Sharpe, is right that hospitals are particularly special settings but they are also workplaces. The NHS employs large numbers of people and has a very mature industrial relations framework within it. It is certainly not implausible that, in consultation with all interested parties, the CAC could come to a perfectly reasonable compromise on access.

The Government also feel that it is not appropriate to make specific provisions for just this one kind of workplace—hospitals—prior to consultation. We are talking about hospital workplaces as opposed to, say, general practitioner or dental surgeries or other areas where you have regard to clinical safety and the sorts of considerations that the noble Lord talked about. Given that, I ask him to withdraw his amendment.

[Lord Sharpe of Epsom (Con)]

I am grateful to the noble Lord for his answer, but a little disappointed. His words largely give away why the Government should accept this amendment. I believe he just used the phrase “reasonable compromise” with regard to the Central Arbitration Committee, whereas the amendment just says

“must give significant weight to the factors set out in subsection (2A)”.

The practical impact of both those phrases is much the same.

So I am disappointed that the Government have chosen to reject this amendment, which is modest, carefully constructed and aimed at protecting one of our most vital public services. We were not asking for a sweeping exclusion, nor undermining the rights of trade unions or seeking—to use the noble Lord’s phraseology—to restrict involvement. We proposed a targeted safeguard that simply recognises the unique, high-risk nature of hospital environments. I will not press the point now, but we reserve the right to return to this in due course. For now, I beg leave to withdraw.

Amendment 213AA withdrawn.

Amendments 213B and 214 not moved.

Clause 56 agreed.

Amendment 215

Moved by

[Lord Hunt of Wirral]

215: After Clause 56, insert the following new Clause—
“Right to switch off in relation to trade union representatives(1) The Trade Union and Labour Relations (Consolidation) Act 1992 is amended in accordance with subsection (2).(2) After section 69 (right to terminate membership of trade union), insert— “69A Right to switch off in relation to trade union representativesIn every contract of membership of a trade union, whether made before or after the coming into force of this section, a term conferring a right on the member to refuse to monitor, read or respond to contact (or attempted contact) by a trade union representative outside their working hours shall be implied.””Member’s explanatory statement
This new clause confers a right to switch off on trade union members in relation to contact from trade union representatives.

[Lord Hunt of Wirral (Con)]

My Lords, Amendments 215 and 332 are in my name and that of my noble friend Lord Sharpe of Epsom. They insert a right for trade union members to switch off—to ignore contact from union representatives outside their own working hours.

Let me be clear at the outset that we on these Benches do not see this as an unimportant, “nice to have” option. It is a necessary safeguard in the context of a Bill which is probably doing more than any legislation in living memory to grant privileges to trade unions and inflate union power and will encourage aggressive recruitment regardless of whether or not workers want it. This amendment goes to the very heart of a deeper question we have to ask ourselves: whom is the trade union there to serve—the worker or itself? If we are honest, the Bill increasingly seems more interested in empowering the institution than protecting the individual. The Bill certainly tilts the playing field, not towards workers as individuals but towards union structures as institutions, and it does so with no meaningful safeguards, no checks and balances, and no regard for the fact that many workers today want something very different from what the traditional trade union model is capable of offering.

The Bill is not neutral nor balanced, and it is not simply updating outdated frameworks or modernising collective bargaining: I believe it is a deliberate attempt to revive old-school trade unionism in a dramatically changed industrial context by granting unions not legitimate rights but privileges, whether or not the workers want them. Through expanded access rights, new entitlements and a raft of concessions, the Government are artificially breathing life into organisations that are, frankly, no longer representative of most working people. Union membership has been declining for decades, not because of external barriers but, I believe, because of internal obsolescence. The nature of work has changed, and expectations have changed, yet trade unions have not. Instead of accepting that reality, this Government have decided to push unions back into the workplace, not by making them more attractive but by giving them more power. We know what happens when institutions are given power without accountability: they use it and, often, abuse it.

This amendment is therefore a response to that risk. It says clearly and unapologetically that, even if the Government want to empower unions, individual workers should still be able to set boundaries, especially in their own time. The pressure that comes from union representatives is not always welcome, and it is certainly not always proportionate, especially now that, under the new powers granted by the Bill, I am sure we will see a rise in out-of-hours messaging, campaign pushes, late-night emails, WhatsApp group bombardments, friendly reminders to attend meetings or urgent invitations to back a ballot. It will be relentless, not because it has to be but because unions will be under pressure themselves to prove their relevance, grow their numbers and mobilise more quickly and visibly than ever.

The burden of that spurious urgency will fall squarely on the ordinary—often reluctant—member, who will have joined the union for protection, not politics, and who just wants to do their job and get on with their life. That member deserves a basic right: the right to draw a line. This amendment gives them that right. It says that, outside your working hours, you cannot be expected to respond to union communications, not because you are hostile to unions or are trying to undermine solidarity but because your time is your own—and because respect for the individual must come before deference to the organisation.

16:30

The Government may argue that they did not proceed with a broader right to switch off for workers because it would have conflicted with the right to reasonable notice from employers. But that very reasoning exposes why this amendment is necessary. If the switch-off had been applied to employer/employee relations, it would have conflicted with the right to reasonable notice in Part 1 of the Bill. There is no emergency that demands that a union rep should chase members after hours. It is a question of political pressure, not practical necessity. The distinction matters because unions are not employers: they are not paying wages, they are not assigning shifts or running the business. They are voluntary organisations, or at least they should be, and “voluntary” means members must be free to choose how and when they engage and must not be pestered at home, pressured improperly into supporting or joining campaigns or bombarded with demands for their time.

This amendment sets a clear limit. It says that, if you are a union member, you cannot be treated as on call round the clock for union business. You cannot be treated like a resource to be endlessly tapped for activism, modernised mobilisation or messaging. If you want to engage, you can. If you do not, you are protected. I believe that is especially important now, because the very structure of this Bill encourages union representatives to behave like middle managers. It creates incentives to prove their influence, boost visibility and show results. That inevitably leads to unwanted contact and, without this amendment, members would have no legal right to say “Stop, not now, not outside work”.

I believe that freedom of association also implies a freedom not to associate. The right to join a union is protected; so, too, is the right not to be engaged when you do not wish to be or when your contractual obligations have ended for the day. I believe that, if we fail to respect that boundary, we risk turning a voluntary association into a mandatory presence, ever present, ever talking and ultimately overbearing. In the end, this is all about respecting modern working people: people who are busy, overconnected and already managing the pressures of work, family and life. They do not need another stream of obligations following them home, uninvited, from organisations that claim to represent them but often pursue political priorities far removed from their own.

If unions are to be relevant in the 21st century, they must learn engagement—and they have to learn it, not demand it. This amendment ensures that engagement remains a choice. That is what real solidarity looks like: freedom to act and freedom to opt out. I urge colleagues on all sides of the House to support this amendment, not to weaken unions but to protect workers, because, after all, that is what employment rights are. So I urge the Committee to adopt this amendment to put the rights of the ordinary worker before and ahead of the machinery of union politics. I beg to move.

[Lord Goddard of Stockport (LD)]

My Lords, I will speak briefly to Amendments 215 and 332, both in the name of the noble Lord, Lord Sharpe. Amendment 215 proposes a new clause to grant trade union members a statutory “right to switch off”; that is, to disengage from contact initiated by trade union representatives.

It raises the wider question of work/life balance and members’ autonomy. That is not a bad thing to raise and probe in this amendment. However, the caricature by the noble Lord, Lord Hunt, of a typical union member is a little fanciful. When I was a shop steward, I certainly would not be ringing up union members at 8 o’clock when England were playing football against somebody. I would have got very short shrift and probably would not have been the shop steward the following week. That is the power of trade unions: they can remove and add shop stewards on a whim.

We just need to be a little bit grown-up about the modern trade unionist. We are living in a different age now. It would be wrong for me to say that communication does not happen, but it is now via text, X and WhatsApp, and that is completely acceptable. Where the line is drawn is around giving people a statutory right to switch off, or not. I think it is down to individual members to decide whether they want to be able to be contacted. It should be for the members themselves to decide that, rather than there having to be some statutory right. It is not for me to pass judgment on the desirability or otherwise of it, but I would be interested to understand the rationale and the evidence underpinning the need for such measures.

Amendment 332 is more technical in nature, providing for the commencement of these provisions a year after the Act receives Royal Assent. This delayed implementation may allow for guidance to be prepared or for institutions to adapt. With that in mind, I would like to hear the Minister’s response to both these things—bearing in mind that, at the end of the day, trade unions exist because of their members; if members do not like a trade union, they can leave a trade union. That point has not been brought up anywhere in this House by anybody. You are free and able to join a trade union. You are also free and able to leave a trade union.

I know that, in 1973 and 1974, people did leave the GMB union over some policies that the union had. It was not an impossible thing to do. They were still treated fairly; they were given full consultation and assistance. It was for us to persuade them to come back into the union, which nine times out of 10 they did. It is not always a one-way street. I would hope that the Conservatives understand that unions are controlled by members.

We have annual congresses. One of the greatest things we used to do as the Lancashire region was to overturn the executive once a year in conferences; to us, that was the object of conference. It did not go down well with John Edmonds and the senior management team. I would stand there berating them for the poor pay of gas workers and objecting to a 2% pay rise, and I would get full support. Then I would have to go and see Mr Edmonds. The words he once said to me were, “You control the union for one week and we control it for the other 51 weeks, so I will let you have this week, David. Now leave”. I have deleted and added words there to avoid using any language that would be unfit for this House.

Again, it is a balancing act. I do hope that the Minister will address it in that manner and not just ignore amendments that come in from the Benches opposite. There is something behind the amendments. They are probing amendments and we are just trying to get the flavour of where the Government sit on membership and the unions, with regard to consultation. We spent a few hours—a lot of hours—the other night talking about union rights and members’ rights. I think this issue just touches on the end of that. I can see why it was not raised in that group, but it is still something that needs explaining a bit more clearly.

[Lord in Waiting/Government Whip (Lord Leong) (Lab)]

My Lords, I first thank the noble Lord, Lord Goddard, for his very entertaining contribution, and the noble Lord, Lord Hunt of Wirral, for speaking to Amendments 215 and 332 in his name and that of the noble Lord, Lord Sharpe.

The proposed new clauses would create a right in primary legislation for trade union members to switch off from contact from trade union representatives. As far as I am aware, there is not any demand to introduce such a requirement on trade unions. I have not heard this from my colleagues, or from trade union members, or from any worker, or indeed from any employer or employer organisation that I have spoken to lately.

It is difficult to see what benefit or purpose such an obligation inserted into membership contracts might serve. Currently, there is no obligation for a trade union member to reply to communications from their trade union, as was ably set out by the noble Lord, Lord Goddard. There is nothing stopping a member ignoring them or telling them to **** off.

This Government are committed to the well-being and positive work-life balance of all workers. The Employment Rights Bill is proof of this commitment, with relevant measures including making flexible working the default except where not reasonably feasible. This will help employees and employers to agree solutions which work for both parties.

I say politely to the noble Lord, Lord Hunt, that I reject his allegation of trade union influence and power interfering with people’s lives. As it stands, every member can ignore the messages and communications —whoever has approached them—outside work. There is no evidence that this is currently happening. I ask the noble Lord, Lord Hunt, to reflect on that and to be careful with some of the pretty harsh words he has said. I invite him to withdraw his Amendment 215.

[Lord Hunt of Wirral (Con)]

My Lords, the noble Lord has to face the reality of the situation when looking at today’s world, where trade unions represent only 12% of private sector workers. He tells the Committee that this provision is not necessary now, but we are entering a new era. It is one that I recall vividly, when I first came into the House of Commons, just under 50 years ago, at a time when the trade unions dominated lives to a huge extent. Talking to some of my friends in the trade union movement, I sense that they look forward to the day when the trade unions will re-emerge in the private sector and become again dominant in public life.

I too was very grateful to the noble Lord, Lord Goddard of Stockport, for talking about work-life balance. I am rather sad that the noble Lord in responding did not really get into that. That is what this amendment is all about. In sharing with us his experiences in the GMB, the noble Lord, Lord Goddard of Stockport, put it in context. I have, in the past, done a lot of cases for the GMB; it is a wonderful, friendly society that looks after people in a huge way. This amendment is not ideological, it is not radical and it would not weaken unions. It would not restrict collective bargaining or impose new administrative burdens on trade unions. All it and the subsequent amendment seek to do is to offer trade union members the right—the dignity—to say, “Not now. Not after hours. Not in my living room. Not when I am at home, off duty and seeking the same privacy and peace of mind that every working person deserves”. We are looking forward to that day, or are we?

If these new provisions give additional power to unions in the Bill, why do the Government not stop for a moment to ask how this will affect ordinary members? Not union leaders, not officials, not full-time organisers, but the actual members who just want to get on with their lives, in peace. That is what this amendment is about—not disruption, not dilution, but balance. I fully accept that many of these members will not complain about out-of-hours contact from a union, but not because they agree with it but because almost certainly they will be tired and will not want confrontation, as they worry that pushing back could lead to exclusion, being labelled or being isolated within the very structure that they joined for protection.

16:45

I ask the Government again: what defence does the individual member have against that kind of constant pressure? If they are messaged repeatedly by a representative late into the evening, what recourse do they have? Do they go to HR? No. Can they raise a grievance? No. Is there a formal process to complain? No. Now, thanks to the Government’s decision today, they will not even have the right in law simply to say, “I’m off duty. Leave me alone”.

Let us be clear about what this means in practice. If you are a union member who wants protection, particularly in the case of a dispute, but do not want to attend meetings, join picket lines or read emails late into the night, this Government’s message to you is tough—you signed up and, if the union wants to chase you on a Sunday evening, there is nothing in law to stop it. That is not support for working people. That is the legislative codification of a political monopoly—one where union structures are protected, promoted and made permanent, but where individual members are slowly deprived of the right to define the terms of their own engagement.

I do not believe we need to choose between representation and rest. I believe the future of industrial relations depends not on bigger structures but on mutual respect, including respect for people’s time, their privacy and their right to a quiet life. As the noble Lord, Lord Goddard of Stockport, said, it is all about getting the work-life balance right. I reserve my right to come back to this issue on Report. In the meantime, I beg leave to withdraw the amendment.

Amendment 215 withdrawn.

Amendment 215ZA

Moved by

[Lord Sharpe of Epsom]

215ZA: After Clause 56, insert the following new Clause—
“Section 56: consultation requirement(1) Before section 56 comes into force, the Secretary of State must consult such persons as they consider appropriate, including—(a) representatives of trade unions, and(b) representatives of employers,on the use of digital communication methods as part of access agreements under section 56.(2) The Secretary of State must publish the outcome of that consultation.(3) Section 56 may not come into force until the outcome of the consultation under subsection (2) has been published.”Member's explanatory statement
This amendment requires the Secretary of State to consult on the role of digital communication in trade union access agreements and to publish the outcome before the relevant provisions come into force.

[Lord Sharpe of Epsom (Con)]

My Lords, Amendment 215ZA is in my name and seeks to insert a new clause following Clause 56. This amendment would require the Secretary of State to consult relevant stakeholders, including representatives of both employers and trade unions, on the use of digital communication methods as part of trade union access agreements under Clause 56. Furthermore, it would require that the outcome of that consultation be published and that the provisions of Clause 56 may not come into force until that has happened.

Let me say at the outset that this is a moderate, practical and entirely necessary amendment. It does not challenge the principle of union access. It does not frustrate the core intent of the legislation. What it does is inject a degree of transparency, rigour and, crucially, consent into a provision that, as it stands, risks doing significant unintended harm to employers and employees alike.

I refer to the remarks made last week by the noble Lord, Lord Katz, during Committee. I thought they were illuminating and, frankly, somewhat concerning. The noble Lord assured us that the Government intend to consult further on the digital provisions. But here is the critical point: the legislation as currently drafted allows Clause 56 to come into force before that consultation has occurred and before any regulations are laid. In effect, this Committee is being asked to pass a framework of legal obligations that have real-word consequences for access to workplaces and digital systems without knowing the rules that will underpin them. This is legislation in reverse, because it enables powers first and critical definitions and safeguards later.

Let us take the words of the noble Lord, Lord Katz, directly. He said that

“the precise details of how this will work in practice will be set out in secondary legislation following further consultation”.

But secondary legislation, as we have discussed many times over the course of this Bill and others that this Government are putting through, is not subject to the same scrutiny as primary legislation. It is not amendable. It can be laid quietly and approved via negative procedures. That is why we must build the consultation obligation directly into the primary legislation. Without it, we risk leaving employers, particularly small and medium-sized employers, exposed to obligations they neither understand nor have had the opportunity to influence.

The noble Lord acknowledged that digital access was not included in the original drafting of the Bill and so was not debated during the Commons Committee stage. It was inserted at a late stage in the legislative process. When pressed on this by my noble friend Lady Coffey last week, the noble Lord could offer no justification for the timing or the rationale behind that late change. Instead, we were told that

“in 2025, the idea that access to a workforce would not include digital channels is, frankly, fanciful”.—[Official Report, 5/6/25; cols. 984 and 985.]

Again, those were the noble Lord’s words.

That may well be the case, but policy made on assumptions and generalities is not good policy. What exactly will “digital access” mean in practice? Will unions be allowed to email employees directly? Will they be granted access to internal mailing lists? What about secure internal platforms or workplace intranets? Will employers be compelled to share employee contact details or act as intermediaries in the distribution of union materials? What safeguards will exist to protect commercially sensitive information, particularly in small firms that operate on a single device or a shared system?

My noble friend Lord Leigh of Hurley also raised a very pertinent point last week. He said:

“The Government are asking the House of Lords tonight to pass legislation that will allow a third person the right to access an employee’s computer … without any controls, references or parameters”.—[Official Report, 5/6/25; cols. 984-85.]


That is not mere rhetoric but a credible reading of the Bill in its current form. If that is not the Government’s intent, we need clarity in law, not just reassurance from the Dispatch Box.

The noble Lord, Lord Katz, tried to deflect concerns by pointing to data protection legislation, but as many in this Committee know only too well, data protection laws regulate the use of personal data; they do not in themselves govern the parameters of access rights under trade union law. Nor do they address the central concern here: that employees and unions need agreed, defined rules of engagement for digital contact in the context of access rights. Indeed, the Government’s apparent position is that all this can be worked out later. That is simply not acceptable. When legislation interferes with the operation of businesses, the integrity of secure systems and the balance of power between employers and unions, it is not enough to say, “Trust us to sort it out in regulations”.

Let me also address the claim that consultation will happen eventually. Of course we welcome that promise, but good process means consulting before rules take effect, not after. It means asking those affected what is reasonable before forcing them to comply, and that is all this amendment does. It would require the Secretary of State to consult relevant stakeholders, including trade unions and employers; that the outcome of that consultation be published in the interests of transparency and trust; and that the relevant part of the legislation, Clause 56, cannot come into force until that is done. That would give everyone fair notice. It would ensure meaningful engagement and prevent the scenario we are currently hurtling towards: a system through which access rights could be imposed by the Central Arbitration Committee, including digital access, without any shared understanding of what that entails.

Access must be delivered in a way that is workable, proportionate and appropriate in each workplace context. In many modern workplaces, digital contact is indeed the most effective route, but in some environments, especially among some SMEs, it also represents a point of vulnerability both for the operations and for data security. I beg to move.

[The Parliamentary Under-Secretary of State, Department for Business and Trade and Department for Science, Information and Technology (Baroness Jones of Whitchurch) (Lab)]

My Lords, I thank the noble Lord, Lord Sharpe, for Amendment 215ZA, which seeks to commit the Government to consult with trade unions and representatives of employers on the detail of Clause 56, which covers trade union right of access. In particular, it would require the Government to consult on the use of digital communication as part of access agreements.

I can confirm that the Government have already committed to consulting with both trade unions and employers’ representatives on the framework and conditions of access, including on the details of that digital access. I can confirm that we will not bring forward secondary legislation on this before we have consulted. While I am grateful to the noble Lord for tabling this amendment, and I look forward to the upcoming debates on Schedule 6 and Clause 57, I must ask him to withdraw his amendment.

[Baroness Verma (Con)]

When the consultations are going on, how much consultation is being done with businesses from the black and ethnic minority communities? As I keep repeating in this House, I have been speaking to lots of businesses and I have yet to come across one that feels that it is being consulted.

[Baroness Jones of Whitchurch (Lab)]

I can assure the noble Baroness that all the main business organisations are consulted as a matter of course, and many of our consultations are available more widely. I take on board her question about the black community and I will ensure that, where it has representative organisations, they are included.

[Lord Sharpe of Epsom (Con)]

My Lords, I am very grateful to the Minister for her answer. Just to be clear, as I understand it, that means that this aspect of the Bill will not be commenced until consultation has taken place. As my noble friend has just suggested, this begs the question of exactly who will be consulted and how. I look forward to hearing more from the Minister on that. I do not expect her to be able to answer that now, but it would be very welcome if she could outline the details of this consultation in a letter in due course. However, I am grateful that she has committed to having the consultation before the commencement of this provision. I beg leave to withdraw the amendment.

Amendment 215ZA withdrawn.

Clause 57: Trade union recognition

Debate on whether Clause 57 should stand part of the Bill.

Member’s explanatory statement

Leaving out Clause 57 would allow SMEs to continue to have an opt out from the compulsory duty to recognise a trade union irrespective of the number of employees working for the SME.

[Lord Hunt of Wirral (Con)]

My Lords, I will speak to the opposition to Clause 57 standing part of the Bill and to Schedule 6 being agreed, tabled by my noble friend Lord Jackson of Peterborough. I also support Amendment 215AZA to Schedule 6, which proposes inserting

“other than in the usual course of the employer’s business”

after “units”. This is all part of a much wider debate that we are moving towards on trade union access and recognition. The amendment may appear narrow in scope, but it addresses a serious flaw in the current drafting which could lead to unintended consequences that undermine the objectives of the Bill and the practical realities of the modern workplace.

The purpose of the provision as drafted is to prevent employers undermining trade union recognition by artificially inflating the size of a bargaining unit with new employees after the application day. That objective is entirely sound. Employers should not be able to frustrate or delay the process of recognition by manipulating the workforce in bad faith. While the provision seeks to target such behaviour, however, the current wording does so in a way that ignores the economic and operational realities facing most employers.

In the vast majority of businesses, employees join and leave as a matter of course. Recruitment is not a manipulative tactic—it is a normal, often essential part of running an organisation. Particularly in sectors with high turnover, employers must routinely recruit to maintain service levels, respond to demand or support business growth. But under the schedule as currently worded, any new employee who joins the bargaining unit after the application date may automatically be excluded from consideration, regardless of whether that recruitment was completely ordinary and unconnected to the union process.

This risks creating a perverse incentive for employers to delay or freeze hiring during the recognition process—something that may last nine months or more in practice. Employers would be put in an impossible position: either pause recruitment at significant operational and economic cost, or continue recruiting and face the uncertainty of whether those employees count in the CAC’s consideration. It also risks unjustly penalising new employees, who, through no fault of their own, would be deprived of representation in the collective bargaining process simply because of the timing of their hire.

This kind of rigidity does not reflect how businesses operate or how workforces evolve. The schedule, without amendment, assumes a static picture of the workplace—one frozen at the moment of application. That may make theoretical sense in a static model, but in reality it is artificial and unworkable. In doing so, it creates uncertainty for all parties and opens the door to protracted disputes about who should or should not be included in a bargaining unit.

Furthermore, the Central Arbitration Committee is already well equipped to monitor changes in workforce composition. It regularly requires updates to information throughout the recognition process. Employers and unions alike are accustomed to this and operate within it. The idea that including new, routinely hired employees in a bargaining unit would overwhelm or undermine the CAC process is not supported by the CAC’s own established practice. The amendment, therefore, does not introduce an undue burden; it aligns the legislation with how recognition procedures already work in practice.

17:00

There is also a broader principle at stake. If the clause remains unamended, it risks creating a two-tier system within workplaces, where long-standing employees are eligible for representation but newer hires are not—through no fault of their own. That is not only administratively awkward; it is normatively undesirable. The recognition process has to be fair and inclusive, not arbitrary and exclusionary.

I believe this amendment strikes the necessary balance. It still guards against the mischief the Government rightly wish to avoid—namely, bad-faith efforts by employers to manipulate workforce composition—but it does so without impeding legitimate and routine business activity. It ensures that only abnormal or strategic changes to the workforce are scrutinised, while preserving the freedom of employers to operate normally and the rights of new employees to be included in the recognition process. I urge the Government to consider that their current drafting may have unintended consequences that would chill ordinary recruitment, generate uncertainty, lead to disputes and ultimately frustrate both employer operations and fair representation for workers. This amendment would provide much-needed clarity and flexibility, while maintaining the integrity of the recognition process.

Amendment 215DA addresses a serious imbalance in the current drafting of the Bill and raises critical questions about what it really means to be pro-worker. The purpose of these provisions, we are told, is to prevent employers subverting the trade union recognition process by strategically recruiting new employees after an application has been made. That is a fair concern, and no one disputes the need to prevent bad-faith conduct. However, in seeking to prevent one abuse, we must not create another. As the Bill is currently drafted, all new employees who join a proposed bargaining unit after an application—regardless of motive or context—can be excluded from the process, whether it be access rights or voting in the recognition ballot.

This is not just a legalistic flaw; surely it is a democratic one. These workers, who may have joined through ordinary recruitment or internal movement, are still workers. They are doing the same jobs, under the same conditions, often in the same teams. Under this provision, they would be arbitrarily excluded from a process that will define how they are represented in the workplace. If this is a pro-worker Bill, then surely it has to be pro all workers, not only those whose votes or presence are assumed to support a particular outcome. To tell employers, “Do not hire or transfer staff into this unit during this process, or they will be treated as suspect” is to demand something that most cannot deliver without operational damage. Is it not the Government’s goal to boost employment?

Then there is the issue of access. The Bill, as currently drafted, allows trade unions to gain access to the workforce even before there is agreement or determination on what the bargaining unit is. I believe this is a major step. Access, particularly by external union officials, is not a trivial or frictionless matter; it disrupts business, introduces outside actors into internal operations, and may create tension or division, especially where the scope of the proposed bargaining unit is contested.

The Government appear not to have considered that, in seeking to insulate the process from employer manipulation, they have in fact exposed it to the opposite danger, where the process can be manipulated by a union seeking to exclude or silence newly recruited or redeployed staff simply because their votes may not advance a particular campaign. That is not industrial democracy; that is electoral engineering.

This amendment provides a principled and pragmatic fix. It permits ordinary business activity—recruitment, redeployment, turnover—without allowing any employers to stuff the ballot. It recognises the CAC’s ability to access and update workforce data over time, and it would also ensure that, when access is granted, it will be done on the basis of a defined and accepted bargaining unit, not speculation.

Above all, it restores balance. If we are truly serious about giving workers a voice, then we must respect all workers’ voices—even those who joined last week, even those who may not support the union and even those whose presence may complicate a tidy narrative. Democracy in the workplace has to include dissenting voices, inconvenient views and late arrivals.

Amendment 216 seeks to retain a critical safeguard in our statutory recognition scheme: namely, that a particular percentage of the workers in the proposed bargaining unit must support trade union recognition in a ballot in addition to a simple majority of those voting. The Government’s current proposal, through paragraphs 18(3) and (4) of this schedule, seeks to remove the 40% threshold, effectively replacing it with a lower bar: that only a majority of votes cast, regardless of turnout, would suffice for recognition. This threshold ensures that the imposition of collective bargaining rights is based on clear and broad support from the entire workforce, not just a motivated minority. It ensures that workers who are silent are not presumed to support recognition. In any democratic process, we have to distinguish between legitimate majority support and outcomes shaped by apathy, misinformation or disengagement.

Imagine a workforce of 100 employees. Under the proposed changes, a ballot in which just 25 people vote—13 in favour and 12 against—would result in all 100 workers being subject to collective bargaining by a union supported by just 13% of the workforce. That surely cannot be right. That is not democracy; that is procedural opportunism. We stress to the Government that any decision on recognition affects terms, conditions and the voice that employees have in negotiations. It should not rest on a low turnout vote.

On Amendment 216KA, the underlying provision states that an

“employer must refrain from taking, or threatening to take … action against a worker solely or mainly”,

because that worker has either attended or expressed an intention to attend a

“relevant meeting between the union … and the relevant workers”

forming a proposed bargaining unit. This is a well-intentioned provision that seeks to protect workers’ legitimate freedom of association and engagement in union activities—principles that are rightly enshrined in both domestic and international labour frameworks. However, my amendment seeks to ensure that these protections do not become a shield for misconduct or contractual breach.

The proposed wording I seek to insert is simple:

“provided that in case of either (a) or (b) the workers have not breached any term of their contract of employment”.

The rationale is equally straightforward: workers’ rights must be protected, but so must employers’ legitimate interests in maintaining workplace discipline and operational integrity. It would be wholly inappropriate, for instance, if a worker could invoke this provision to shield themselves from consequences after walking off the job without notice, breaching confidentiality or failing to comply with reasonable management instructions, simply by saying they were going to attend, or had attended, a union meeting. We must avoid creating a situation where attendance at, or interest in, a union meeting becomes a free pass for misconduct.

[Baroness Jones of Whitchurch (Lab)]

My Lords, I thank the noble Lord, Lord Hunt, for his keen interest in and amendments to Clause 57 and Schedule 6. The noble Lord, Lord Jackson, has set out his opposition to both the clause and schedule.

Clause 57 and Schedule 6 speak to our commitment to strengthening collective bargaining and trade union recognition. We believe that strong trade unions are essential for tackling insecurity, inequality, discrimination, enforcement and low pay. Our view is that the existing legal framework needs to be simplified, so that workers have security in the workplace by having a more meaningful right to organise through their trade unions. As we have heard, to achieve this, the clause and schedule remove the current requirement for a union to have at least 40% of the workforce in the proposed bargaining unit supporting union recognition. In future, unions will need only a simple majority in a recognition ballot to win.

The current requirement for a union to demonstrate at the application stage that it is likely there will be a majority for union recognition poses a significant hurdle in modern workplaces, which are increasingly fragmented. That is why the clause deletes the requirement for a union to demonstrate, on application to the CAC, that it is likely to win a recognition ballot. In future, unions will need to show only that they have 10% membership of the proposed bargaining unit for their application for recognition to be accepted by the CAC.

We also wish to consider whether the current 10% membership requirement on application should be lowered in future. The clause therefore provides a power to enable the Secretary of State to make affirmative regulations, which we will consult on, to amend the 10% membership requirement in future, within the parameters of 2% to 10%, as we have set out in Schedule 6.

Clause 57 and Schedule 6 also address unfair practices and access arrangements in the process of recognition and derecognition of trade unions. I hope this satisfies noble Lords who oppose this clause and schedule that these measures strengthen collective bargaining rights.

Before I turn to the amendments to Schedule 6 tabled by the noble Lord, Lord Sharpe, it is worth noting that the Government have also tabled amendments to it. We will debate them shortly, and noble Lords may wish to consider them for the context of today’s debates.

Amendments 215AZA, 216AA and 216BB would carve out recruitment in the usual course of the employer’s business from the freeze on the bargaining unit provided for in the Bill. This is well intentioned. Indeed, we consulted on options for a more targeted approach to preventing mass recruitment into the bargaining unit with the aim to thwart a recognition application. However, after considering responses to the consultation, we concluded that a more targeted approach is not workable, as it would be difficult to establish a sufficient level of proof to determine the purpose for which workers had been recruited. In addition, a new obligation on employers to demonstrate their recruitment intent would be a disproportionate and unfair burden, and it could result in employers having to divulge commercially sensitive information.

Amendment 215AA, at least in some cases, seeks to reinstate the 10% membership test on application. It also—again, at least in some cases—would remove the references in Schedule 6 that exclude workers recruited following receipt by the CAC of a trade union recognition application from counting for the purposes of the recognition process.

I will set out my reasoning in relation to the 10% membership threshold on application and why we are including a power in the Bill to allow Ministers to vary the membership threshold from 10% to 2% in the next debate. New Schedule A1 should be consistent on this principle. I refer noble Lords to what I have said previously on this issue. I will also set out why we believe employers should no longer be able to recruit workers into the bargaining unit for the purpose of thwarting a trade union recognition application. I am steadfast that this reform is necessary to ensure that the process is fair and must not be undermined by what could be underhand tactics.

I turn to Amendments 215DA to 215DC, 215EA, 215FA to 215FF, 215FI, 215GA, 215HA and 216BA. Did I get that wrong?

17:15

[Lord Katz (Lab)]

No, the noble Baroness got it right.

[Baroness Jones of Whitchurch (Lab)]

These amendments seek to delay when unions would be able to request access during the recognition process until after the bargaining unit had been agreed or determined. While I understand what the noble Lord is attempting to achieve with these amendments, employers have access to the workforce throughout the recognition process. The Government’s view is that unions should have access to the workplace as well from the point where the CAC accepts the application for recognition. This enables the unions to also have access to the workplace for a time closer to the start of the recognition process.

Amendments 215FG, 215FH, 216GA and 216MA seek to remove specific unfair practices from Schedule 6. They seem to seek to allow employers or unions to make an outcome-specific offer or use undue influence with a view to influencing the recognition application. These unfair practices are of long standing and are already set out in the legislation currently in force. The use of undue influence could, for example, include the threat or the use of violence. We therefore see no argument for removing these prohibitions on these unfair practices.

Amendment 216 seeks to reverse changes in the Bill by reinstating the requirement that unions meet the 40% support threshold in addition to a majority in a statutory union recognition ballot. I remind noble Lords that this was a manifesto commitment set out clearly in our plan to make work pay. We are committed to strengthening collective bargaining rights and trade union recognition. We believe that strong trade unions are essential for tackling insecurity, inequality, discrimination, enforcement and low pay. Our view is that the existing legal framework needs to be simplified so that workers have a more meaningful right to organise through their trade unions.

To achieve this, we are removing the current requirement for a union to have at least 40% of the workforce in the proposed bargaining unit supporting union recognition. In future, unions will need only a simple majority in a recognition ballot to win. We believe that the 40% support threshold represents too high a hurdle in modern workplaces, which are increasingly fragmented.

Amendment 216KA seeks to ensure that an employer is not prohibited from taking action against the worker for meeting or indicating that they would like to meet unions during the statutory recognition process if the worker has breached any term of their contract of employment. The prohibition that this amendment seeks to amend is carried forward from the existing legislation, where the proposed proviso about the worker not having breached their contract does not appear. While well intentioned, this amendment is not necessary. The prohibition applies only where the employer takes action against the worker solely or mainly on the grounds that they met with the union. It does not apply where the sole or main purpose is another reason, which may, in some circumstances, be a breach of their contract of employment. I hope this provides the necessary reassurance to the noble Lord.

I therefore thank the noble Lords, Lord Sharpe and Lord Hunt, for the debate and for tabling these amendments, but I must ask the noble Lord not to move the amendments.

[Lord Hunt of Wirral (Con)]

My Lords, we are very grateful to the Minister for revealing to the Committee that we are discussing a fundamental reshaping of workplace democracy, with potentially profound consequences. She is right to explain that that is what the Government are about. The Employment Rights Bill does not just tinker with existing procedures; it carefully dismantles the framework established by previous Labour Governments. Under these reforms, as the Minister just revealed, unions would need to demonstrate just 10% membership support to trigger recognition processes, and that is a threshold that regulations could reduce, after consultation, to an extraordinary 2%.

Let me explain to the Committee what that means in practice. In a bargaining unit of 250 employees, recognition could be initiated by as few as 25 members under the 10% threshold, or potentially just five members if it is reduced to 2%. More troubling still, with the removal of the 40% support requirement, union recognition, granting negotiating rights over all 250 employees, could theoretically be achieved with a single yes vote, provided no one votes against. This is not hyperbole but mathematical reality under the proposed framework.

Perhaps most concerning of all is that, as the Minister, Justin Madders, acknowledged in the other place, there has been no consultation on these fundamental changes. We are being asked to revolutionise industrial relations based on ideology rather than evidence, without hearing from employers, workers or even the Central Arbitration Committee, which must implement these provisions. This lack of consultation betrays a troubling disregard for the complexity of workplace relations and the legitimate interests of all parties: employers, workers who support unionisation, and those who do not.

The amendments I spoke to are not anti-union but pro-democracy. They recognise that legitimate collective bargaining must rest on genuine demonstrable support from the workforce it claims to represent. The current proposals risk creating what I can only describe as recognition by stealth, where small, motivated groups can impose collective bargaining arrangements on entire workforces without meaningful mandate. That is not industrial democracy; it is the antithesis of it.

Consider the worker who joins a company the day after a union application is filed. Under these proposals, they may be excluded from the very process that will determine their workplace representation. Consider the 245 employees in my hypothetical bargaining unit who never joined the union and never voted, yet find themselves bound by collective agreements negotiated on their behalf by representatives they did not choose.

Beyond democratic concerns lie practical ones: the amendments I have tried to persuade the House to accept recognise that businesses must continue to operate during recognition processes that could stretch over nine months. Routine recruitment, staff transfers and ordinary business activities cannot be frozen pending union ballots without severe economic consequences. Yet the Bill as drafted forces exactly this choice: suspend normal operations or face the uncertainty of having legitimate business decisions treated as manipulation.

These reforms occur within a pattern of changes that consistently favour union interests over balanced workplace relations. The lowering of thresholds, the removal of safeguards and the expansion of access rights: each individual change may seem modest, but collectively they represent a fundamental shift in the balance of industrial relations. This is particularly concerning given the Government’s stated commitment to economic growth. How can we simultaneously demand that businesses expand, hire and invest while making their operations subject to collective bargaining arrangements that will lack genuine workforce support? The Government must bear in mind that these Benches will not sit back and allow this to happen. We will return to it at Report, but in the meantime, I will not oppose the clause standing part.

Clause 57 agreed.

Schedule 6: Trade union recognition

Amendment 215A

Moved by

[Baroness Jones of Whitchurch]

215A: Schedule 6, page 218, line 17, at end insert—
“3A After paragraph 13 insert—13A “(1) This paragraph applies if—(a) the CAC has received an application under paragraph 11 or 12, and(b) it has given notice to the employer under paragraph 13 of receipt of the application.(2) The employer must comply with the following duties (so far as it is reasonable to expect the employer to do so).(3) The duties are—(a) to give to the CAC, within the relevant period, the specified information in relation to each of the relevant workers; (b) if the relevant workers change as a result of an appropriate bargaining unit being agreed by the parties or decided by the CAC, to give to the CAC, within the relevant period, the specified information in relation to each of those who are now the relevant workers;(c) to take reasonable steps to ensure that the information given to the CAC under paragraph (a) or (b) does not include any information relating to an individual who is not a relevant worker;(d) to inform the CAC, as soon as reasonably practicable, of any worker in relation to whom information has been given to the CAC under paragraph (a) or (b) and who ceases to be a relevant worker (otherwise than by reason of a change mentioned in paragraph (b)).(4) The relevant period is—(a) in the case of the duty in sub-paragraph (3)(a)—(i) the period of 5 working days starting with the day after that on which notice was given to the employer of receipt of the application, or(ii) such longer period (so starting) as the CAC may specify to the parties by notice containing reasons for the extension;(b) in the case of the duty in sub-paragraph (3)(b)—(i) the period of 5 working days starting with the day after that on which the bargaining unit is agreed or the CAC’s decision is notified to the employer, or(ii) such longer period (so starting) as the CAC may specify to the parties by notice containing reasons for the extension.(5) The specified information, in relation to a relevant worker, is—(a) the worker’s name;(b) the worker’s date of birth;(c) the category of worker to which the relevant worker belongs.(6) In the case of an application under paragraph 11(2) or 12(2), the relevant workers are—(a) in relation to any time before an appropriate bargaining unit is agreed by the parties or decided by the CAC, those falling within the proposed bargaining unit, and(b) in relation to any time after an appropriate bargaining unit is so agreed or decided, those falling within the bargaining unit agreed or decided upon,but excluding any worker who joined the bargaining unit after the application day.(7) In the case of an application under paragraph 12(4), the relevant workers are those falling within the bargaining unit agreed by the parties, excluding any worker who joined the bargaining unit after the application day.13B (1) Sub-paragraph (2) applies if—(a) the CAC is satisfied that the employer has failed to fulfil a duty mentioned in paragraph 13A(3), and(b) the application under paragraph 11 or 12 is in progress.(2) The CAC may order the employer—(a) to take such steps to remedy the failure as the CAC considers reasonable and specifies in the order, and(b) to do so within such period as the CAC considers reasonable and specifies in the order;and in this paragraph a “remedial order” means an order under this sub-paragraph.(3) If— (a) the CAC is satisfied that the employer has failed to comply with a remedial order, and(b) the application under paragraph 11 or 12 is in progress,the CAC must, as soon as reasonably practicable, notify the employer and the union (or unions) that it is satisfied that the employer has failed to comply.(4) A remedial order and a notice under sub-paragraph (3) must draw the recipient’s attention to the effect of sub-paragraphs (5) and (6).(5) Sub-paragraph (6) applies if—(a) the CAC is satisfied that the employer has failed to comply with a remedial order,(b) the application under paragraph 11 or 12 is in progress,(c) the parties have agreed an appropriate bargaining unit or the CAC has decided an appropriate bargaining unit, and(d) in the case of an application under paragraph 11(2) or 12(2), the CAC, if required to do so, has decided under paragraph 20 that the application is not invalid.(6) The CAC may issue a declaration that the union is (or unions are) recognised as entitled to conduct collective bargaining on behalf of the workers constituting the bargaining unit.(7) For the purposes of this paragraph, an application under paragraph 11 or 12 is in progress if none of the following has occurred—(a) the withdrawal of the application;(b) the CAC giving notice of a decision under paragraph 14(7) which precludes it from accepting the application;(c) the CAC giving notice under paragraph 15(4)(a) in relation to the application;(d) the CAC giving notice to the union (or unions) of a decision under paragraph 20 that the application is invalid;(e) the CAC giving notice to the union (or unions) of a declaration issued under paragraph 13B(6), 19F(5), 19K(4) or (5), 19P(4) or (5), 22(2) or 27(2) in relation to the application;(f) the holding of any ballot arising from the application.””Member’s explanatory statement
This amendment requires an employer to provide certain information about the workers in a bargaining unit within 5 working days after the employer is notified of an application for recognition of a trade union. The duty does not include workers who joined the unit after the application was received by the CAC, as they cannot vote in any potential ballot arising from the application.

[Baroness Jones of Whitchurch (Lab)]

My Lords, as I explained at the all-Peers briefing on 8 May, my amendments to Schedule 6 have been made following welcome scrutiny of the Bill. They do not bring forward new policy but instead aim to ensure that the legislation operates more effectively to implement policies already reflected in the Bill. I will speak to all the amendments in this group, which amend Schedule 6 or the government amendments that I tabled.

On government Amendments 216L, 216M, 216U, 216W, 216J, 216N, 216P, 216Q and 216V, there is currently no provision for a sanction on an employer where the employer fails to comply with access arrangements in relation to a worker application for trade union derecognition. Where legislation imposes a duty, there must be a corresponding enforcement mechanism to give effect to that duty. This is why these amendments have been tabled and why they are necessary.

Amendments 216LA, 216LB, 216MZA, 216MZB and 216MZC in the name of the noble Lord, Lord Sharpe, all relate to sanctions on the employer or the union where one of the parties fails to comply with access arrangements generally in relation to a worker application for trade union derecognition. Amendment 216LA, again tabled by the noble Lord Sharpe, would introduce a proportionality test, where the CAC considers applying a sanction on the employer to prevent it campaigning should it be in breach of an access agreement. This amendment is unnecessary. It would make it harder for the CAC to issue an order, as determining how a breach by the employer affected the recognition process would be difficult to establish. It should be sufficient for the CAC to establish that a breach has occurred.

Amendment 216LB would add an additional sanction where a union has breached an access agreement by allowing the CAC to impose a sanction to prevent the union campaigning. This amendment is unnecessary because, in relation to applications by workers seeking derecognition of the union, the CAC has the ultimate sanction of declaring that the union is derecognised, should the union fail to comply with the CAC order.

Amendment 216MZA seeks to clarify that either the union or the worker can enforce a CAC order but not both, the aim being to avoid overlapping enforcement actions. I thank the noble Lord for this amendment, but it is not necessary. The legislation is framed so that the union, the workers or both can enforce a CAC order because we cannot assume, where there is an application by workers for derecognition of a union, that workers and the union would be of the same view. To insist that only one party or the other can enforce the order would deprive the other party of its rights. This shows that the Bill is about striking the right balance between unions, employers and workers. Should both the union and the workers be of the same view, the court could simply join their applications together when considering whether an employer had breached the CAC order. In that event, there would therefore not be overlapping enforcement actions against the employer.

17:30

Amendment 216MZB, tabled by the noble Lord, Lord Sharpe, seeks to preserve the role of the CAC as the primary enforcement body. I understand the spirit of this amendment. We agree that, for the most part, in the recognition and derecognition process, the CAC should be the primary enforcement body. However, that is not appropriate here, where the employer is already in breach of an order of the CAC. In this instance, the worker or the union should have the right to seek recourse against the employer for breaching the order of the CAC. Normally, the final recourse for a breach of a CAC order would be for the CAC to dismiss or accept an application. In this instance, if the CAC was to use its ultimate sanction and dismiss the workers’ application for derecognition, this would be punishing the workers for a breach made by the employer. That is why we are enabling the workers or unions to seek enforcement via the court system.

The noble Lord’s Amendment 216MZC seeks to give employers the right to enforce a CAC order where a union has failed to comply with an access agreement in relation to an application for derecognition that has been submitted by workers. This amendment is not necessary. Where a union is in breach of an access agreement, the CAC already has a significant dissuasive sanction: if the union fails to comply with a CAC order, the CAC can declare that the union has been derecognised.

I turn to government Amendment 215A and consequential amendments. Government Amendments 215A to 216S are about ensuring that the Central Arbitration Committee can operate this policy effectively. They will require the employer to provide to the CAC within five days names, dates of birth and worker categories of all workers within the proposed or agreed bargaining unit, as at the point when the CAC received the recognition application from the union. Should the employer not provide this information within five working days, the CAC will be given the power to issue an order requiring this information to be provided. Should the employer not comply with that order, the CAC will have the power to make a declaration granting automatic union recognition. This is to ensure that the CAC receives this information promptly, near the start of the recognition process. It will also help to avoid disputes as to which workers should count for the purposes of the recognition process.

Government Amendments 216B, 216D, 216H and 216I are minor amendments to ensure clarity and consistency. They add missing paragraph references relating to barring bargaining unit applications for a three-year period. They also remove erroneous references to ballots preventing findings or declarations of an unfair practice in respect of a new bargaining unit.

Government Amendments 215F, 216G, 216K, 216T and 216X remove a potential five-day mismatch and align the 20-working-day timelines to agree access and agree the bargaining unit during the recognition and derecognition processes, so that the CAC decision and adjudication periods for the two will, as far as possible, coincide. These amendments will also help ensure that the CAC’s adjudication for access relates to the bargaining unit that the CAC has determined.

Government Amendment 216F seeks to close a potential loophole that we have identified. Currently, once a union has been statutorily recognised under Part 1 of Schedule A1, an employer can subsequently make an application under Part 3, where the bargaining unit has changed significantly. One of the considerations is whether there has been a significant change in the number of workers in the bargaining unit. If the CAC agrees with the employer’s request under Part 3, it can then order a ballot. As there is currently no time bar in relation to Part 3 applications once a union has been statutorily recognised, there is the potential for an employer to recruit into the bargaining unit, thus changing it substantially, for the purpose of trying to get a newly recognised union derecognised. This amendment is not new policy but seeks to make the policy work better by closing this loophole. Its purpose is to prevent an employer from undermining the recognition process by significantly changing the numbers of workers in the bargaining unit once a union has been statutorily recognised.

Amendments 216Y to 216YB, tabled by the noble Lord, Lord Lucas, seek to require the 10% membership test on application to be subject to a minimum of three workers, and for the power in the Bill to enable Ministers to bring forward secondary legislation to vary the 10% membership threshold to be restricted to no less than 5% membership of the bargaining unit, this again to be subject to a minimum of three workers. As I have said, and as our Plan to Make Work Pay makes clear, the current thresholds pose too high a hurdle in modern workplaces, which are increasingly fragmented. We want to be able to consider whether the 10% membership threshold on application should be reduced in future.

However, we want to consult before making any final decisions. The power enables Ministers to adjust the long-standing 10% membership application threshold to between 10% and 2%. This is because that was the figure used by the previous Government when they reduced in 2020 the threshold that triggers information and consultation arrangements under the Information and Consultation of Employees Regulations 2004 from 10% to 2% of employees in a workplace. In view of the above, I hope noble Lords agree that 2% is not an unreasonable figure to consult on, among other options.

This is why we do not agree with restricting this power to reduce the application threshold to 5% membership of the bargaining unit. The power is framed to enable Ministers to have the maximum possible options when considering whether, and, if so, by how much, we may reduce the application threshold in future, once we have taken account of views expressed in consultation. The 10% membership test on application has never been subject to a minimum requirement of three or any other number of workers. We do not accept why this should be the case now, or for any percentage threshold figure in the future.

Amendments 215AZZA to 215AZZD, in the name of the noble Lord, Lord Sharpe, seek to circumvent the changes in the Employment Rights Bill that will prevent employers from initiating mass recruitment to dilute the bargaining unit for the purpose of thwarting recognition. Due to the impact that mass recruitment into the bargaining unit can have on an application for recognition, the Government are clear that freezing the composition of the bargaining unit at the point of application receipt is important in ensuring fair recognition ballots.

Amendments 216FA and 216FB are also in the name of the noble Lord, Lord Sharpe. Amendment 216FA is an unnecessary amendment. A change in the organisation or structure of the business, or a change in the activities pursued by the employer, will continue to be grounds for the CAC to consider the appropriateness of the bargaining unit. We are disregarding the change in the number of workers as only a means for consideration, as has been addressed with regards to our concerns of flooding the bargaining unit.

Amendment 216FB seeks to overrule the three- year freeze on the CAC’s power to determine the appropriateness of the bargaining unit following changes to the original unit. This amendment would enable employers to adjust the composition of the bargaining unit post application ballot, to force a reassessment of the bargaining unit, with a potential for derecognition. This would undermine the Government’s aim to prevent manipulation of the bargaining unit by an employer.

I am conscious of a duplication of issues here. That is not the fault of the Government but of those who chose to pull their amendments out of what should have been a general debate. I apologise for repeating some of our arguments, but it made sense for these amendments as well.

Although I am grateful for the keen interest in Schedule 6 and Clause 57 in this and the previous debate, I hope that, for the reasons I have stated, the noble Lord does not move Amendment 215AZZA.

Amendment 215AZZA (to Amendment 215A)

Moved by

[Lord Sharpe of Epsom]

215AZZA: After inserted paragraph 13A(5), insert—
“(5A) Where the CAC is satisfied that changes to the workforce materially affect the composition of the bargaining unit, it may direct the employer to provide updated specified information before the close of any ballot.”Member's explanatory statement
This amendment enables the CAC to request updated workforce information from the employer where there have been material changes, ensuring that the ballot reflects the current composition of the bargaining unit.

[Lord Sharpe of Epsom (Con)]

My Lords, I thank the noble Baroness for her explanation of the amendments, particularly the government amendments. However, she argued that this should have been something of the nature of a general debate. The reason why the amendments were degrouped in the other cases is because they all relate to the government amendments, which the Government are trying to pass off as technical when they are anything but. This deserved a discrete debate and that is what it is going to get. I will have to speak at some length, because there is a great deal to cover, for which I apologise in advance.

I will start with Amendment 215AZZA, which is essential to ensure that the union recognition ballot remains fair and truly representative of the bargaining unit at the time of the ballot. The Government’s current position, which locks in workforce data as of the application date and refuses to permit updates, rests on a false premise, and that is that the workplace is static and unchanging; this is simply not the case.

Many industries, from hospitality and retail to logistics and manufacturing, experience significant changes in their workplace composition over time. Employees leave, new workers are hired and entire teams can be restructured in response to market demand or seasonal shifts. By refusing to allow the CAC to request updated workforce information, the Government’s approach risks ballots that are fundamentally out of date—an electoral exercise held not on the actual workforce but on a ghost workforce that no longer exists.

Our amendment would give the CAC the power to direct employers to provide updated workforce information where material changes occur, allowing the ballot to reflect the current reality. This is not a matter of administrative tidiness. It protects workers from having union recognition based on outdated data imposed on them or from being excluded from the democratic process entirely because they joined the company after the arbitrary cut-off.

Furthermore, the CAC has a proven track record of acting promptly and impartially to ensure that ballots are fair and accurate, so the amendment would strengthen rather than weaken its role in protecting workers’ democratic rights. Without this power, the Government’s framework risks disfranchising many workers and undermining the confidence in the entire union recognition process. I have to say that noble Lords opposite frequently cite democratic concerns about current employment law, and if they are serious and not just paying mere lip service to that notion, they should back the amendment and the others to which I am speaking.

Amendment 215AZZB seeks to correct a fundamental injustice that is embedded in the Government’s Amendment 215A. The Government are excluding any worker who joins the bargaining unit after the application day from participating in the recognition ballot. This exclusion is indefensible. It denies newly hired employees any say in a process that will directly impact their working conditions, their representation and potentially their relationship with their employer. The principle at stake is simple: democratic fairness requires that those affected by a decision have the opportunity to participate in making that decision. To exclude workers based solely on an arbitrary application date denies them this right. It is not, as the Minister asserted just now, fair; it risks imposing union recognition —or, conversely, denying it—on employees who are not allowed to express their views.

In sectors where employee turnover is high or where the workforce expands rapidly due to seasonal demand, the Government’s approach risks disfranchising a significant portion of the workforce. These workers are often the most vulnerable and most in need of representation. Our amendment would ensure that all workers employed within the bargaining unit up to the close of the ballot would be eligible to vote. This aligns with the recognition process, with democratic principles and with the reality of modern employment patterns. To deny these workers a voice is to undermine the legitimacy of the entire process.

Amendment 215AZZC seeks to reinforce the need for fairness by ensuring that newly hired workers are not automatically excluded from the recognition ballot, provided they are employed before the ballot concludes. Again, we believe it is untenable for the Government to argue that workers hired after the application date should have no say in a process that determines their representative status and the terms and conditions that govern their work. In industries that are characterised by rapid hiring, seasonal peaks or unpredictable labour needs, the workforce on the application date may bear little resemblance to the workforce at the time of the ballot. By allowing all workers employed up to the ballot’s close to vote, we uphold principles of inclusivity and fairness, ensuring that this ballot truly reflects the views of those it affects.

Amendment 215AZZCA recognises the realities of sectors characterised by high seasonal or cyclical employment volatility, such as retail, hospitality and logistics. These industries often see dramatic fluctuations in employee numbers, with staff numbers sometimes doubling or halving within a matter of weeks or months. The Government’s proposals fail to take this volatility into account. They impose rigid cut-offs that disfranchise workers who join after the application day, even when their numbers materially affect the bargaining unit’s composition. This is not a marginal issue. In such sectors, the workforce on the application day may represent only a fraction of the employees who will work there over the coming months.

17:45

Our amendment would simply allow the CAC discretion to consider these fluctuations. It ensures that workers are not excluded simply because they joined after a fixed date in a sector where employee numbers change constantly. This discretionary power for the CAC is vital to protect democratic fairness. It prevents arbitrary exclusions that would undermine the legitimacy of the recognition process. To ignore the realities of employment volatility is to impose a one-size-fits-none model that risks disfranchising tens of thousands of workers.

Amendment 215AZZD would safeguard the integrity of union recognition processes by requiring the CAC to consider whether excluding new employees from a ballot would materially affect the outcome or undermine democratic fairness before issuing a union recognition decision. The Government’s proposals, in their current form, allow for the exclusion of workers who joined after the application day without any requirement to assess the impact of that exclusion on the ballot’s fairness. This risks union recognition being declared on a workforce snapshot that does not reflect the reality at the time of the decision. Such a process is inherently unfair and could lead to recognition decisions that lack legitimacy. By requiring the CAC to make a considered judgment on the fairness of excluding new employees, the amendment would ensure that recognition declarations were founded on a truly representative mandate.

The Government present Amendment 216F as a stability measure to freeze bargaining units for three years following recognition, implying that this is a straightforward and/or technical safeguard. But far from being merely technical, this is a profound policy choice with significant implications for worker representation, collective bargaining legitimacy and the agility of labour relations in a dynamic and modern industrial setting. It is thus entirely appropriate that we scrutinise and seek to narrow its scope where it risks unintended injustice.

Under the Government’s proposal, once the CAC issues a declaration recognising a union for a particular bargaining unit, for the next three years the CAC may not take into account any substantial changes in the number of workers employed in that unit when considering whether the unit remains appropriate. In other words, even if the workforce has been transformed by genuine large-scale operational restructuring, the CAC is barred from treating that transformation as grounds to revisit the appropriateness of the unit. We understand the intent, which is to provide certainty and avoid constant rerunning of recognition ballots, but this blanket moratorium risks locking in a bargaining unit that no longer reflects the reality on the ground.

In many sectors, genuine operational restructuring is commonplace: companies merge or divest divisions; supply chains are reorganised; automation or digitalisation reshapes roles; entire sites may open or close; and there may be new categories of workers—for instance, remote workers or gig workers may join and, of course, new lines of business may emerge. If the bargaining unit remains static despite changes such as these, the collective bargaining framework may become disconnected from the workforce it purports to represent. Workers may find themselves excluded from representation or represented under a collective arrangement ill-suited to their changed roles or employer structure.

Amendment 216FA would introduce a carefully targeted narrow exception:

“unless the CAC is satisfied that substantial operational restructuring has occurred which materially alters the composition or function of the bargaining unit”.

This would preserve the Government’s aim of stability in most circumstances while allowing the CAC to respond to genuinely transformative changes. It is not carte blanche for frequent challenges; rather, it would require the CAC to be satisfied that the restructuring is “substantial”, meaning it must materially alter who is in the unit or how the unit functions in collective bargaining. This strikes the right balance: it prevents frivolous or incremental challenges, yet it also ensures that in cases of genuine change, representation would remain fit for purpose. I simply cannot understand why the Government would not want to accept that amendment. I could go on with examples, but I will not.

Amendment 216FA responds to the Government’s overbroad freeze by introducing a principled, narrowed gateway. Only where genuine substantial operational restructuring has materially altered the bargaining unit should the CAC be able to revisit appropriateness, even within the three-year window. This preserves the stability that the Government seek, while preventing the disfranchisement of workers or misalignment of collective bargaining, so I urge the Committee to support this amendment.

I move on to Amendment 216FB. Once again, the Government would have the Committee believe that a rigid three-year prohibition on considering workforce changes is a technical refinement for stability. In truth, it is a sweeping policy that may entrench misrepresentation of workers. We have to ensure that collective bargaining units remain genuinely representative, and Amendment 216FB does exactly that, by empowering the CAC to override the three-year restriction where necessary to maintain accurate representation.

Under Amendment 216F, the CAC must disregard changes in the workforce for three years after recognition. The risk is plain: if employee numbers or compositions shift materially through growth in new roles, as I have just outlined, the bargaining unit may cease to mirror the workforce, yet the CAC would be powerless to act, solely because three years have not elapsed.

Our Amendment 216FB states:

“Sub-paragraph (4A) does not apply where the CAC determines that continued application would result in the bargaining unit no longer accurately reflecting the composition of the workforce for the purposes of collective bargaining”.

In effect, it creates a safety valve. If the CAC, on assessment, concludes that ignoring workforce changes would render the unit unrepresentative, it may set aside the moratorium and allow a reassessment. This is critical for preserving democratic and representative collective bargaining.

Collective bargaining depends on the bargaining unit encompassing the workers whose interests are to be negotiated. The noble Lord, Lord Hendy, gave us an interesting historical canter through the world of collective bargaining the other day, and I think that that was his conclusion. If, after recognition, the unit’s membership has evolved significantly—say, through the introduction of a new line of business employment or different categories of staff—the original unit may no longer cover those workers or, conversely, may cover a much smaller or different cohort. Amendment 216FB ensures that the CAC could step in if the disparity between the unit and the workforce grows too large. This safeguard is not a call for endless or frivolous challenges; it is a measured principle that the unit must remain accurate in representing those it purports to cover.

I turn to Amendments 216LA and 216LB. Amendment 216LA addresses the circumstances under which the CAC may impose sanctions on an employer during a derecognition process: specifically, restrictions on campaigning or other orders under sub-paragraph (4). The Government’s existing text allows the CAC to impose such measures when it deems an employer to have failed to comply with duties, but without an explicit proportionality test or a requirement to assess the materiality of the breach. This risks the CAC applying severe sanctions in cases where the employer’s non-compliance was trivial or where the fairness of the derecognition process was not undermined.

Labelling this a technical tweak denies its significance: it defines the threshold for imposing serious restrictions on an employer’s conduct in a sensitive process that directly affects employees’ rights to choose representation. Without clear safeguards, the CAC could, in theory, restrict employee communication or campaigning over a minor procedural lapse that had no real impact on the derecognition ballot’s fairness. That would be disproportionate and could chill a legitimate employer engagement, undermining confidence in the process. Again, I could go on to talk about proportionality at some length but, for everyone’s sanity, I will not.

Amendment 216LA introduces a fundamental safeguard—a proportionality and a materiality test—before the CAC restricts employers’ campaigning in derecognition. This is not a trivial technical tweak but a necessary protection of fair process, employer rights to legitimate engagement and overall confidence in derecognition outcomes.

Amendment 216LB addresses the mirror-image situation for unions. The existing schedule allows the CAC,

“instead of or in addition to issuing a declaration”,

to impose sanctions on unions in derecognition applications. It does not explicitly require a proportionality or materiality assessment before restricting union campaigning. It is vital for fairness that unions are subject to the same safeguards as employers.

It is fundamentally unfair to impose a stringent proportionality test on employers but not on unions. If the CAC must first consider materiality and proportionality before sanctioning an employer, the same standard must surely apply to union conduct. To do otherwise risks creating asymmetry, undermines the perception of impartiality and risks unfairly curbing legitimate union communication on a lower threshold of breach. This is far from a technical point; it goes to the heart of equal treatment in the process. Again, I will spare the Committee a variety of illustrative examples.

Amendment 216MZA clarifies that enforcement of a CAC order may be pursued by either the workers or the union, but not by both. Without such clarity, we risk overlapping or conflicting enforcement actions arising from the same breach, creating legal uncertainty and potential delay. By specifying either/or, we seek to create a single, coherent enforcement route, reducing the burden on courts and avoiding unnecessary duplication. This protects all parties—employers, unions and workers—from the confusion and costs that arrive when multiple parallel proceedings are possible.

Amendment 216MZB builds on that clarity. It provides that the enforcement may be undertaken only by the CAC itself, using its existing statutory powers. This preserves the CAC’s established role as the expert, impartial body responsible for overseeing compliance. Allowing employees or unions to launch separate civil court actions would fragment the process, risk inconsistent outcomes and undermine the CAC’s central position. By channelling enforcement through the CAC alone, we would achieve streamlined, consistent and expert resolution of any breaches.

Finally, Amendment 216MZC ensures parity by granting employers the same enforcement rights against unions as those afforded to unions or workers in the existing drafting. If a union fails to comply with a CAC order, the employer must have equivalent standing to seek enforcement through the CAC. This balances rights on both sides and prevents a scenario where only one party type can act, thereby safeguarding procedural fairness. Equal enforcement rights deter non-compliance by any party and reinforce confidence that the CAC’s decisions will be implemented.

I am very conscious that I have not spoken to my noble friend Lord Lucas’s amendments, and I am sure he will follow in a second, but I heard the noble Baroness’s objections to them, which was along the lines of “We’ve never done this before”. Well, much of the Bill has never been done before, so I do not regard that as a valid objection. I look forward to hearing more but, for now, I beg to move Amendment 215AZZA.

[Lord Lucas (Con)]

My Lords, I am very grateful for the Minister’s introduction to my amendments. I accept that the Government want to go for 2% as the lower limit, but I found the Government’s explanation of my other two amendments, which require a minimum of three people, very strange. The Minister said, “It’s not the way it’s been done before, so we shouldn’t change it now”. If she were to apply that principle to the Bill, we could strike the whole thing out and be done with it.

The reason for proposing the change is that it is sensible. It is just not sensible to put a company, particularly a small company, in a position where one employee can trigger this process. A minimum of three is not a big figure; it is just saying that there needs to be more than one, and three seems to be the right place to start. I know it is not the way that it has been done; that is why I put in an amendment.

[Baroness Lawlor (Con)]

My Lords, I will say a few words in support of Amendments 215AZZB to 215AZZD, tabled by my noble friend Lord Sharpe. These are to Schedule 6 and I am responding to the Government’s amendments to this schedule, which qualify who may take part in a ballot, to ensure that those workers in the union before the close of the ballot may vote. These amendments address those who join after the application date but before the close of the ballot and newly hired workers within the bargaining unit. Amendment 215AZZD aims to ensure that the CAC is satisfied that the exclusion of new employees would not materially affect the outcome of a ballot or undermine democratic fairness. Amendment 215AZA would ensure that new workers who join the bargaining unit after the application date are not automatically disregarded for the purposes of recognition.

18:00

These amendments are designed to respond to the Government’s proposal to freeze the workplace bargaining unit and the right to participate in a ballot of those who join after the application date. They are changes to the 1992 Act’s Schedule A1, on collective bargaining recognition. That was a considered Act on the complicated matter of the balance to be maintained in law between employers, individual employees and trade unions. In Schedule A1, on the framework and procedures for recognition and the related entitlement to conduct collective bargaining—that is, as the Act puts it,

“negotiations relating to pay, hours and holidays”—

these arrangements are there and clear for all involved on how the recognition process works, and the courts can review what happens. This Bill, though, excludes workers who join the relevant bargaining unit after the application day; and elsewhere, which we are not discussing now, it replaces the eligibility test. The amendments my noble friend proposes would strengthen the democratic process so that the voices of new workers in the workplace, who may be affected by the industrial action or the ballots as proposed, are not excluded.

I can see reasons—anti-democratic reasons—why existing members may want to exclude new members: they are not sure how they vote; they have not been subjected to the ethos and pressures of fellow members; they may not vote the “right” way. But the laws we pass in this Parliament should be fair and reflect all the voices, and those people represented by the bargaining unit who are involved in a ballot and potentially a strike should have a say and be entitled to do so.

The existing arrangements are generous to the unions, which represent only one-fifth of the UK’s total workforce—a mere 6.4 million of 33.49 million workers. We should remember that, and the imbalance that exists between organised, unionised labour, who call the shots, and the small man and woman in the workforce: the millions of others. We should not take a step that excludes some of those small people from having a say and participating in a ballot if they happen to have joined the workforce after the application date. That is why I am supporting these amendments.

[Lord Goddard of Stockport (LD)]

My Lords, I rise to speak to the amendments standing in the name of the noble Baroness, Lady Jones. These proposals, while numerous and largely technical in nature, form an important part of the broader framework for trade union recognition and access. Although they are technical in nature, if you read the amendments—and there are quite a number of them—you will see that the Government are beginning to put a bit of meat on quite a small bone. This is the first time in the Bill that we have seen that kind of thing begin to be teased out. Notably, government Amendments 215A and 215F set out clear procedural timelines and information-sharing requirements between employers and the Central Arbitration Committee to help improve transparency and predictability for all parties involved. By establishing firmer timelines, such as a five-day window to provide workforce data and the 20-day period to agree access arrangements, these provisions aim to support a more orderly and informed recognition process, which I welcome.

I turn to the amendments tabled by the noble Lord, Lord Sharpe. I acknowledge the intention to reflect the workforce changes more accurately, but in our view, some of his proposals risk creating a little uncertainty. Amendments 215AZZB and 215AZZC, for instance, introduce provisions to include new and hired workers in the ballot, potentially undermining the principle that eligibility should be based on the state of the bargaining unit at the time of the application. It is like buying a lottery ticket after the lottery has finished, and then complaining if your numbers come up and you are not allowed to win—you literally have to be in it before it starts.

Similarly, the carve-outs from the three-year stability periods found in Amendments 216FA and 216FB could weaken the clarity and consistency that employers and trade unions require. We must be cautious about layering too many exceptions that could reopen settling matters and prolong disputes unnecessarily.

Finally, while the Government’s overall aim of modernising these areas of law is welcome, it remains vital that clarity and simplicity are not lost in that process. We need to ensure that the frameworks, particularly around recognition, access and enforcement, remain workable and intelligible for employers and workers alike. This is important in sectors characterised by high turnover and volatility. I therefore urge Ministers to consider refining these proposals with that principle in mind: that the system must support effective and fair collective bargaining without inviting further ambiguity.

These amendments are well laid and extremely well made. I thank the noble Lords, Lord Sharpe and Lord Hunt, for their clarity tonight in dealing with the issues. To everybody who has been sitting here for seven or eight long nights, I must say that business is not moving any more slowly, but clarity is much improved. I thank the Front Bench and the Conservative group for being more concise in speaking to the issues; I have appreciated that, and I know my group have too. I think the Minister might agree—through slightly gritted teeth—that this is the way forward.

[Baroness Jones of Whitchurch (Lab)]

My Lords, I am conscious that we have had a slightly disjointed debate; as I said, some of these issues were debated in the previous group and were covered in my opening remarks. I will pick up a few points. I am grateful to the noble Lord, Lord Goddard, for saying that we are attempting to create a more orderly recognition process, because that is exactly what our amendments are trying to do: to provide the clarity that we felt was missing. I should say that, in addition to the comments I made earlier, we notified all Peers of the Government’s amendments, twice and in writing, and we invited all Peers to a briefing on these on 8 May. All the details have been spelled out in an all-peers letter and supporting annexes. We have therefore been at pains to explain the thinking behind our amendments.

Obviously, most recognition processes go through extremely smoothly, but we believe that this reform is necessary to prevent recruitment for the purposes of thwarting trade union recognition. The process must be fair and not undermined by underhand tactics. Although not all recruitment is underhand, of course, we decided after consultation that the freezing proposed in the Bill is the best way to achieve that fairness. We are attempting to come up with a fair system. Attempting to distinguish between the various intentions of different employers and their recruitment practices is impractical and would be likely to lead to disputes. We felt that this would not be in the interests of employers, the unions or the workers. Of course, there will be changes to the people in the bargaining unit, and where a union is recognised, new workers will be able to take part in subsequent ballots—for example, should a derecognition ballot be held—and other forms of consultation. These restrictions will apply only to that particular element of trade union recognition.

The noble Lord, Lord Sharpe, said that he wants to introduce a proportionality test. That would make it harder for the CAC to issue an order determining how a breach by the employer affected the recognition process; that would be difficult for it to establish. It should be sufficient for the CAC to establish that a breach has occurred, rather than having to make the more difficult judgment about proportionality. Also, the CAC is very experienced in such things and is well equipped to do so.

I say to the noble Lord, Lord Lucas, that we do not object to his amendment only because this has not been done before, but because we wanted to consult before we made a final decision about changing the acceptance threshold from the 10% proposed limit.

I think I have covered most of the other points, either in the letters that we have sent out or in my earlier speeches. I therefore ask the noble Lord to withdraw his amendment.

[Lord Lucas (Con)]

I would be very grateful if the Minister could address the substance of my amendment; 10% or 2% is all very fine, but if it results in the answer of one employee being sufficient, that seems to be not an ideal situation. I would have thought that in seeking to look after small businesses it would be sensible to require a minimum number. I cannot see anything in the structure of the Bill at the moment that allows a minimum number to be applied to this percentage. A percentage can generate one if the company is small, whether it is 10% or 2%. Would it not be a good idea to have something in the Bill, subject to consultation, which allowed in small companies with a small workforce for it not to be just one employee who is triggering this procedure?

[Baroness Jones of Whitchurch (Lab)]

That that would come out in the consultation. I think the noble Lord’s proposal of three is a somewhat arbitrary number. If we are going to do that, there are all sorts of minimum numbers that could be applied. I urge noble Lords to recognise that these are the issues that we will consider in the consultation, but I do not think that the rather arbitrary figure that the noble Lord proposed is appropriate at this time.

[Lord Lucas (Con)]

I understand that, but it still requires something in the Bill to allow a minimum number. We can return to that matter on Report.

[Lord Sharpe of Epsom (Con)]

I beg leave to withdraw the amendment.

Amendment 215AZZA (to Amendment 215A) withdrawn.

Amendments 215AZZB to 215AZZD (to Amendment 215A) not moved.

Amendment 215A agreed.

Amendments 215AZA and 215AA not moved.

Amendments 215B to 215D

Moved by

[Baroness Jones of Whitchurch]

215B: Schedule 6, page 219, line 8, leave out “after “19F(5)” insert “,” and insert “for “19F(5)” substitute “13B(6), 19F(5),”
Member’s explanatory statement
This amendment is consequential on my amendment of Schedule 6 at page 218, line 17.

215C: Schedule 6, page 219, line 12, leave out “after “19F(5)” insert “,” and insert “for “19F(5)” substitute “13B(6), 19F(5),”
Member’s explanatory statement
This amendment is consequential on my amendment of Schedule 6 at page 218, line 17.

215D: Schedule 6, page 219, line 22, leave out “after “19F(5)” insert “,” and insert “for “19F(5)” substitute “13B(6), 19F(5),”
Member’s explanatory statement
This amendment is consequential on my amendment of Schedule 6 at page 218, line 17.

Amendments 215B to 215D agreed.

Amendments 215DA to 215DC not moved.

Amendment 215E

Moved by

[Baroness Jones of Whitchurch]

215E: Schedule 6, page 220, line 21, after “paragraph” insert “13B(6),”
Member’s explanatory statement
This amendment is consequential on my amendment of Schedule 6 at page 218, line 17.

Amendment 215E agreed.

Amendment 215EA not moved.

Amendment 215F

Moved by

[Baroness Jones of Whitchurch]

215F: Schedule 6, page 220, line 35, leave out from “(6)” to end of line 37 and insert “—
(a) the period of 20 working days starting with the day after the day on which the CAC gives the union (or unions) notice under paragraph 15(5) that the application is accepted, or(b) such longer period (so starting) as the CAC may specify to the parties by notice containing reasons for the extension.”Member’s explanatory statement
This amendment would provide that, where an application under Part 1 of Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992 (recognition of trade union as entitled to conduct collective bargaining) has been made, the period for agreeing terms on which the trade union seeking recognition is to have access to the relevant workers in connection with the application is 20 working days following notification that the union’s application is accepted. The amendment would also enable the Central Arbitration Committee to specify a longer period.

Amendment 215F agreed.

Amendments 215FA to 215FI not moved.

Amendment 215G

Moved by

[Baroness Jones of Whitchurch]

215G: Schedule 6, page 225, line 29, after “paragraph” insert “13B(6),”
Member’s explanatory statement
This amendment is consequential on my amendment of Schedule 6 at page 218, line 17.

Amendment 215G agreed.

Amendment 215GA not moved.

Amendment 215H

Moved by

[Baroness Jones of Whitchurch]

215H: Schedule 6, page 226, line 35, after “paragraph” insert “13B(6),”
Member’s explanatory statement
This amendment is consequential on my amendment of Schedule 6 at page 218, line 17.

Amendment 215H agreed.

Amendment 215HA not moved.

Amendments 215I to 215K

Moved by

[Baroness Jones of Whitchurch]

215I: Schedule 6, page 227, line 15, after “paragraph” insert “13B(6),”
Member’s explanatory statement
This amendment is consequential on my amendment of Schedule 6 at page 218, line 17.

215J: Schedule 6, page 227, line 41, leave out “after “19F(5)” insert “,” and insert “for “19F(5)” substitute “13B(6), 19F(5),”
Member’s explanatory statement
This amendment is consequential on my amendment of Schedule 6 at page 218, line 17.

215K: Schedule 6, page 228, line 12, leave out “after “19F(5)” insert “,” and insert “for “19F(5)” substitute “13B(6), 19F(5),”
Member’s explanatory statement
This amendment is consequential on my amendment of Schedule 6 at page 218, line 17.

Amendments 215I to 215K agreed.

Amendment 216 not moved.

Amendment 216A

Moved by

[Baroness Jones of Whitchurch]

216A: Schedule 6, page 232, line 36, leave out “after “19F(5),” insert” and insert “for “19F(5),” substitute “13B(6), 19F(5),”
Member’s explanatory statement
This amendment is consequential on my amendment of Schedule 6 at page 218, line 17.

Amendment 216A agreed.

Amendment 216AA not moved.

18:15

Amendment 216B

Moved by

[Baroness Jones of Whitchurch]

216B: Schedule 6, page 232, line 41, at end insert—
“21A In paragraph 39 (admissibility of applications: same bargaining unit), in sub-paragraph (5), after “40” insert “, 40A”.”Member’s explanatory statement
This amendment makes a consequential amendment of Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992 as a result of the amendment made by paragraph 23 of Schedule 6 to the Bill.

Amendment 216B agreed.

Amendments 216BA and 216BB not moved.

Amendments 216C to 216E

Moved by

[Baroness Jones of Whitchurch]

216C: Schedule 6, page 234, line 30, leave out “after “19F(5),” insert” and insert “for “19F(5),” substitute “13B(6), 19F(5),”
Member’s explanatory statement
This amendment is consequential on my amendment of Schedule 6 at page 218, line 17.

216D: Schedule 6, page 234, line 35, at end insert—
“27A In paragraph 47 (validity of applications: same bargaining unit), in sub-paragraph (3), after “48” insert “, 48A”.”Member’s explanatory statement
This amendment makes a consequential amendment of Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992 as a result of the amendment made by paragraph 29 of Schedule 6 to the Bill.

216E: Schedule 6, page 235, line 24, leave out “after “19F(5)” insert “,” and insert “for “19F(5)” substitute “13B(6), 19F(5),”
Member’s explanatory statement
This amendment is consequential on my amendment of Schedule 6 at page 218, line 17.

Amendments 216C to 216E agreed.

Amendment 216F

Moved by

[Baroness Jones of Whitchurch]

216F: Schedule 6, page 235, line 27, at end insert—
“Changes relevant to appropriateness of bargaining unit
32A (1) Paragraph 67 (admissibility of applications: employer or union believes bargaining unit no longer appropriate) is amended as follows.(2) In sub-paragraph (2)(c), at the end insert “(but see sub-paragraph (3)).”(3) After sub-paragraph (2) insert—“(3) In a case where the application was received by the CAC before the end of the period of three years starting with the day on which the declaration referred to in paragraph 64(1)(a) was issued, the CAC must disregard the matter specified in sub-paragraph (2)(c).”32B (1) Paragraph 70 (determination of bargaining unit by CAC) is amended as follows.(2) In sub-paragraph (3)(c), at the end insert “(but see sub-paragraph (3A)).”(3) After sub-paragraph (3) insert—“(3A) In a case where the application was received by the CAC before the end of the period of three years starting with the day on which the declaration referred to in paragraph 64(1)(a) was issued, the CAC may not take into account the matter specified in sub-paragraph (3)(c).”32C In paragraph 75 (questions for CAC to decide where employer believes bargaining unit has ceased to exist), in sub-paragraph (3)(c), at the end insert “(but see paragraph 77(4A)).”32D In paragraph 77 (CAC’s decision as to appropriateness of bargaining unit, etc), after sub-paragraph (4) insert—“(4A) In a case where the copy of the notice given to the CAC by the employer under paragraph 74(1) was received by the CAC before the end of the period of three years starting with the day on which the declaration referred to in paragraph 64(1)(a) was issued, in deciding whether the original unit is no longer appropriate the CAC must disregard the matter specified in paragraph 75(3)(c).””Member's explanatory statement
This amendment provides that, where the Central Arbitration Committee has issued a declaration that a trade union is recognised as entitled to conduct collective bargaining on behalf of a bargaining unit, and a decision of the CAC as to the continued appropriateness of the bargaining unit is sought under Part 3 of Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992 before the end of the period of three years beginning with the date of the declaration, the CAC is not to take into account substantial changes in the number of workers employed in the original unit.

Amendments 216FA and 216FB (to Amendment 216F) not moved.

Amendment 216F agreed.

Amendment 216G

Moved by

[Baroness Jones of Whitchurch]

216G: Schedule 6, page 237, line 2, leave out from “(6)” to end of line 4 and insert “—
(a) the period of 20 working days starting with the day after the day on which the CAC gives the union (or unions) notice under paragraph 68(5) or 76(5) that the application is accepted, or (b) such longer period (so starting) as the CAC may specify to the parties by notice containing reasons for the extension.”Member’s explanatory statement
This amendment would provide that, where an application under Part 3 of Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992 (changes affecting bargaining unit) has been made, the period for agreeing terms on which the trade union concerned is to have access to the relevant workers in connection with the application is 20 working days following notification that the application is accepted. The amendment would also enable the Central Arbitration Committee to specify a longer period.

Amendment 216G agreed.

Amendment 216GA not moved.

Amendments 216H to 216K

Moved by

[Baroness Jones of Whitchurch]

216H: Schedule 6, page 243, leave out lines 19 and 20 and insert—
“(iii) if the CAC informs the union (or unions) under paragraph 25(9) (where it applies by virtue of paragraph 89(4)) of any ballot arising from the application, the CAC acting under paragraph 29 (where it applies by virtue of paragraph 89(5)) in relation to the ballot.”Member’s explanatory statement
This amendment ensures that, where the Central Arbitration Committee decides that a complaint about unfair practices in connection with an application under Part 3 of Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992 is well-founded, the CAC may make an order under paragraph 81I(3) of that Schedule, or give notice of a ballot under paragraph 81I(5), whether or not a ballot arising from the application has been held.

216I: Schedule 6, page 244, line 2, leave out from “89(1),” to “and” in line 4
Member’s explanatory statement
This amendment ensures that, where the Central Arbitration Committee decides that a complaint about unfair practices in connection with an application under Part 3 of Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992 is well-founded, the CAC may issue a declaration under paragraph 81J(4) or (5) of that Schedule whether or not a ballot arising from the application has been held.

216J: Schedule 6, page 246, line 25, leave out “116E(4),” and insert “116E(4)(a),”
Member’s explanatory statement
This amendment is consequential on my amendment of Schedule 6 at page 249, line 32.

216K: Schedule 6, page 247, line 2, leave out from “(6)” to end of line 4 and insert “—
(a) the period of 20 working days starting with the day after the day on which the CAC gives the union (or unions) notice under paragraph 111(5) or 115(5) that the application is accepted, or(b) such longer period (so starting) as the CAC may specify to the parties by notice containing reasons for the extension.”Member’s explanatory statement
This amendment would provide that, where an application under Part 4 of Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992 (derecognition) has been made, the period for agreeing terms on which the trade union concerned is to have access to the relevant workers in connection with the application is 20 working days following notification that the application is accepted. The amendment would also enable the Central Arbitration Committee to specify a longer period.

Amendments 216H to 216K agreed.

Amendment 216KA not moved.

Amendment 216L

Moved by

[Baroness Jones of Whitchurch]

216L: Schedule 6, page 249, line 32, leave out from “employer,” to end of line 34 and insert “the CAC may—
(a) refuse the employer’s application under paragraph 106 or 107;(b) order the employer to refrain from any campaigning in relation to an application under paragraph 112.”Member’s explanatory statement
This amendment provides for a sanction where an employer fails to comply with an access agreement under Part 4 of Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992 and the application for derecognition of a trade union as entitled to conduct collective bargaining on behalf of a bargaining unit has been made by one or more workers in the unit under paragraph 112 of that Schedule. The Central Arbitration Committee may order the employer not to campaign in relation to the application.

Amendment 216LA (to Amendment 216L) not moved.

Amendment 216L agreed.

Amendment 216LB not moved.

Amendment 216M

Moved by

[Baroness Jones of Whitchurch]

216M: Schedule 6, page 249, line 38, at end insert—
116EA “(1) This paragraph applies if the CAC has made an order under paragraph 116E(4)(b) in relation to an application under paragraph 112.(2) The worker making the application (or each of the workers making the application) and the union (or each of the unions) are entitled to enforce obedience to the order.(3) The order may be enforced—(a) in England and Wales, in the same way as an order of the county court;(b) in Scotland, in the same way as an order of the sheriff.”Member’s explanatory statement
This amendment is consequential on my amendment of Schedule 6 at page 249, line 32. It enables the worker making the application in question, or the trade union concerned, to enforce an order made against an employer requiring the employer not to campaign in relation to the application.

Amendments 216MZA to 216MZC (to Amendment 216M) not moved.

Amendment 216M agreed.

Amendment 216MA not moved.

Amendments 216N to 216X

Moved by

[Baroness Jones of Whitchurch]

216N: Schedule 6, page 251, line 29, leave out “116E(4),” and insert “116E(4)(a),”
Member’s explanatory statement
This amendment is consequential on my amendment of Schedule 6 at page 249, line 32.

216P: Schedule 6, page 252, line 28, leave out “116E(4),” and insert “116E(4)(a),”
Member’s explanatory statement
This amendment is consequential on my amendment of Schedule 6 at page 249, line 32.

216Q: Schedule 6, page 253, line 9, leave out “116E(4),” and insert “116E(4)(a),”
Member’s explanatory statement
This amendment is consequential on my amendment of Schedule 6 at page 249, line 32.

216R: Schedule 6, page 257, line 17, leave out “after “19F(5),” insert” and insert “for “19F(5),” substitute “13B(6), 19F(5),”
Member’s explanatory statement
This amendment is consequential on my amendment of Schedule 6 at page 218, line 17.

216S: Schedule 6, page 257, line 21, leave out “after “19F(5),” insert” and insert “for “19F(5),” substitute “13B(6), 19F(5),”
Member’s explanatory statement
This amendment is consequential on my amendment of Schedule 6 at page 218, line 17.

216T: Schedule 6, page 257, line 35, leave out “reference in paragraph 116A(3)” and insert “references in paragraphs 116A(3) and 116B(3)(a)”
Member’s explanatory statement
This amendment is consequential on my amendment of Schedule 6 at page 247, line 2.

216U: Schedule 6, page 257, line 37, leave out “116E(4)” and insert “116E(4)(a)”
Member’s explanatory statement
This amendment is consequential on my amendment of Schedule 6 at page 249, line 32.

216V: Schedule 6, page 258, line 24, leave out “116E” and insert “116EA”
Member’s explanatory statement
This amendment is consequential on my amendment of Schedule 6 at page 249, line 38.

216W: Schedule 6, page 258, line 31, leave out “reference in paragraph 116A(4)(b)” and insert “references in paragraphs 116A(4)(b), 116E(4)(b) and 116EA(1)”
Member’s explanatory statement
This amendment is consequential on my amendments of Schedule 6 at page 249, lines 32 and 38.

216X: Schedule 6, page 258, line 33, leave out “reference in paragraph 116A(3)” and insert “references in paragraphs 116A(3) and 116B(3)(a)”
Member’s explanatory statement
This amendment is consequential on my amendment of Schedule 6 at page 247, line 2.

Amendments 216N to 216X agreed.

Amendments 216Y to 216YB not moved.

Schedule 6, as amended, agreed.

Clause 58: Political funds: requirement to pass political resolution

Amendment 216YC

Moved by

[Baroness Coffey]

216YC: Clause 58, page 86, line 17, leave out from “resolution)” to end of line 20
and insert “, in subsection (1)—
(a) omit “of those voting on a ballot”;(b) after “union”, insert “by a ballot”.” Member’s explanatory statement
The intention of this amendment is to remove the existing paragraphs (a) and (b) of the Clause, and ensure that the majority of all union members who could possibly vote are needed to pass a political resolution, not just the majority of those that vote.

[Baroness Coffey (Con)]

My Lords, in moving Amendment 216YC, I will also speak to Amendment 216YD and address Amendment 217, tabled by the noble Lord, Lord Burns, to which I have added my name—as indeed has my noble friend Lady Finn, whose birthday it is today; she knows how to have a good time. I will also address Amendment 218A and various other amendments, and Clause 77.

In essence, we are debating Clauses 58, 59 and 77. Clause 58 is about political funds. The situation has been that a political resolution is needed, and a fair, open, democratic process occurs every 10 years at most where members of the union are invited to keep the resolution going, or a new resolution may be put forward. One thing that concerns me is that this clause could simply wipe out that need.

I do not know in detail how every political resolution can be put forward, but my understanding of trade unions is that, by and large, individuals cannot put them forward. They can be put forward only through resolutions and motions, often by a person who is a delegate of a branch or similar. As a consequence, in effect, we have a situation where a political resolution can go on ad infinitum. I am not sure that that is the right approach.

I recognise that a lot of the rest of the Bill is about changing ways that people can vote to try to make it a lot more digital and a lot easier. I understand why the Labour Government, in partnership with the trade unions, believe that that is the right approach. I am also conscious, though, of why changes have been made in the past.

I am looking just to probe with my proposal. At the moment, there is a threshold for a strike where at least half of those eligible to vote have to vote. Here, there is none of that at all. It shows me somewhat that, even with trade unions, there is a lot of disengagement from this part of the process. I get that a lot of people are not necessarily opting out. To give an example, with the Musicians’ Union resolution, only 18% of members actually voted or participated in the ballot. With UNISON’s last resolution, fewer than 15% of its members were involved in determining whether to keep the resolution. As I said, this does not seem very open to anybody who might want to table a different resolution. I am not expecting UNISON to start contributing funds to the Conservative Party any time soon—I guess the name of its political fund, Labour Link, gives the game away on where UNISON would like its funds to go—and that is democracy, but I am thinking of ways that we could potentially extend this.

On Amendment 216YD, we seem to have had a lot of general elections recently, but I hope we are now in a situation where we hold elections every five years. If your Lordships were so inclined, it would make sense, recognising the direct link between political funds and political parties, to start to think about these political resolutions happening every five years instead of every 10 years. We are in a political world that is significantly changing. Almost every parliamentary constituency has at least five candidates, with at least six or seven outside of England, in Scotland, Wales or Northern Ireland. It is worth considering whether we should update this.

I generally agree with the proposal that we should get rid of Clause 59 in its entirety. I think back in particular to Second Reading. I will not go into detail, but the noble Lord, Lord Burns, spoke eloquently about what happened with his review. I do not plan to dwell on his amendment, as there are others who will contribute to it more. For me, it goes back to the need for a sensible approach instead of having to go through a long procedure, which to some extent is probably contrary to Article 11 and the implicit right not to join either a trade union or a political fund. This clause scraps that. Ministers have commented that that is okay. The basis is that you can opt out, and it will take effect the following January. You might have contributed a lot of money by then, but they think that is all right.

This is why I tabled my Amendment 218A; I am delighted that my noble friend Lady Cash supports it. If we go ahead with the opt-out approach then someone who opts out may not have all the necessary paperwork on the day they decide to opt out—apart from when they join the union in the first place. Therefore, if we gave them four weeks from their becoming a member of a trade union, during which they could decide that they did not want to contribute, their decision could be backdated to the day of joining. This is an approach for a modern world, where people may not want to spend all their time looking at the small print when they sign up to something to understand quite what they can or cannot do, which can affect their rights. Contrary to the Bill’s title—the Employment Rights Bill—the text as it stands in effect removes an employee’s rights. If the Government were to scrap that element about “the day” I would be more than delighted, although I would prefer to stick to the amendment tabled by the noble Lord, Lord Burns.

As regards some of the other approaches put forward in various amendments in this group, I would not in any way want to accuse any trade union of trying to allow intimidation or the like in their dealing with their members. We have heard the noble Baroness, Lady O’Grady of Upper Holloway, eloquently cite, I am sure with good evidence and good experience, cases of employers intimidating. However, I think it is fair to say that some of the trade union reforms that happened over the past decades—very few of which were changed by the Blair and Brown Governments, I should point out—were made on the basis of concerns about intimidation. I hope the Minister will at least recognise some of the concerns that noble Lords may have in this group. A variety of amendments have been tabled, which all seek to get us to us to a similar place.

Finally, I will speak to Clause 77, which starts, in effect, to remove transparency. Transparency is a good thing when we talk about democracy and the contributions that organisations make to a variety of political parties. I am surprised that the Government are going down this route. I cannot believe that it is that arduous for trade unions to compile this information. There are other aspects of what is happening with the certification officer, which we will get on to in another group, but given the importance that has rightly been given to considering the issues concerning the Electoral Commission, it is right that we should also consider this issue carefully at this stage. I do not believe that removing transparency is the right direction for the Committee to take.

Although I intend to keep this debate lively and pacy, it is important that we make sure that we get to the bottom of why this provision has been felt to be necessary. I hope that the Minister will be able to explain, fundamentally, why the Government have taken a complete and utter about-turn if it has not been designed —I do not want to upset the noble Lord, Lord Goddard of Stockport—to increase the amount of political funds. I am sure those funds will be use in very good ways—well, considering my political party, perhaps not always in good ways—but when the transparency is removed we will not be able to have that scrutiny. I beg to move.

[The Deputy Chairman of Committees (Baroness Barker) (LD)]

I advise noble Lords that if Amendment 216YC is agreed to, I cannot call Amendment 216YD because of pre-emption.

18:30

[Lord Burns (CB)]

My Lords, my Amendment 217 relates to Clause 59 and the requirement to contribute to a political fund, and I am grateful for the support of the noble Baronesses, Lady Finn, Lady Coffey and Lady Cash. As we know, by law, a trade union wishing to spend money on party-political activities must set up a separate political fund for financing any such expenditure.

The amendment addresses a single issue: whether new trade union members should be explicitly asked whether they wish to opt in to contributing to the union’s political fund or should automatically become contributors to the political fund unless they take action to opt out. The present position is that new trade union members become contributors to the political fund only if they give notice of their willingness to do so by submitting an opt-in notice. Additionally, every year unions must notify members of their right to submit a withdrawal notice.

Clause 59 proposes to change both conditions so that new members will automatically become contributors to the union’s political fund unless they give notice of their wish to opt out, and will be notified of their right to submit a withdrawal notice only every 10 years, rather than every year as at present.

This is a controversial issue today and one that has been debated for more than 100 years. The position on opt-in or opt-out has changed several times since trade union political funds were legalised in 1913. I am very sorry for my cough.

[Baroness Stowell of Beeston (Con)]

Will the noble Lord give way? He might find an opportunity to take advantage of the water that was provided. I just wanted to say that the noble Lord, Lord Burns, is making a very powerful contribution to this debate and I am going to support him in his argument. I am very grateful to the noble Lord for giving way.

[Lord Burns (CB)]

I thank the noble Baroness for those kind words. Unfortunately, it is the season of the year when I take various inhalers for hay fever and such like and the dust tends to gather in my throat when I am sitting for long periods, as I have been this afternoon.

I was just mentioning that this is a debate which has gone on for a long time. Between 1946 and 2016, members automatically became contributors to political funds unless they opted out. In 1984 the Conservative Government considered legislating to change to the opt-in model but settled for an agreement that the unions would increase awareness among members of their right to opt out.

In 2015 the Conservative Government introduced a Trade Union Bill that proposed to change the system so that both existing and new members would contribute to the political fund only if they explicitly opted to do so. The Labour Opposition argued that this change would have a negative impact on the size of union political funds, and consequently Labour Party funding. They argued that this should be done only in the context of broader party funding reform. They were successful in establishing a Select Committee to consider the issue and to find a solution in parallel with the Bill’s progress.

I was asked to chair the committee, and several other members of the committee remain Members of the House today. The committee concluded that reintroducing an opt-in process for all members, including existing members, could significantly reduce the number of union members participating in political funds. It also concluded that this would lead to a significant reduction in union payments to the Labour Party while leaving donations to other parties unaffected.

A majority—but not all—of the committee concluded that the proposed requirement to opt in should not apply to existing members unless it was part of a broader reform of party funding. However, the committee unanimously decided that the opt-in mechanism should apply to all new members. After further debate, the Conservative Government accepted compromise amendments that limited the opt-in mechanism to new members, despite some significant unhappiness on their own side.

I acknowledge that there is no conclusive approach to determining whether opting in is better or worse than opting out. In some cases, opting out is deemed appropriate, such as in the case of workplace pensions, where the failure to opt in could result in future costs for government. However, evidence from various settings suggests that when it comes to making additional payments, more people will end up paying if they must opt out rather than opt in. The more cumbersome the administrative hurdles to opting out, the greater the likelihood an individual will not exercise their right to do so. Such administrative hurdles increase the likelihood that the outcome will not be in the best interests of the individual.

On balance, I prefer that we should ensure that people make informed decisions based on clear and transparent options. With most financial products—and decisions about allowing tech companies to use individuals’ data—there is a requirement to explicitly opt in. The concern is that allowing companies to require opt-out preys on people’s inertia. Furthermore, we have spent hours in this House debating the data Bill and the question of opting in or opting out of AI models’ ability to learn from copyrighted material. My own view is that requiring people to explicitly opt in reflects their preferences more accurately.

During a helpful conversation with the Minister, for which I am grateful, she emphasised that this is not simply a return to the position pre 2016. However, my fear is that in substance that is indeed what it is. I would welcome clarification on some aspects of the Government’s proposals. Will it be a requirement that the union’s application form for members joining a union continues to include a statement to the effect that a member may choose to opt out of the political fund and that they will not suffer any detriment if they choose not to contribute? Will new members have the option of choosing to opt out before completing the application? Why do the Government wish to change the requirement that a member be reminded annually of the right to opt out? The new proposal is that they should be reminded only every 10 years. What is the Government’s justification for this change?

Is there any reason why it should not be possible to give an unbiased choice at the time of joining? There could be two questions—two boxes—and a requirement to tick one box. One might say, “I wish to contribute to the union’s political fund”, and the other, “I do not wish to contribute to the union’s political fund”. The application would not be complete without ticking one or the other—a practice that we see very often these days, particularly with online applications. Does the Minister anticipate that the proportion of new members contributing to political funds will be higher under this legislation than has been the experience under the present 2016 Act and, if so, by how much?

Finally, I say this to the Government in the friendliest terms I can muster: why are they running the risk that the next time there is a change of government there will be another reversal which results in something less favourable to Labour than the 2016 compromise? Another reversal might well introduce the opt-in system for all members, both new and existing; in other words, the proposal on the table before the 2016 compromise that caused all the trouble at that point.

I stress that I have no view on whether trade union members’ contributions to political funds are too high or too low. Having tried, with a small amount of success, to find a resolution to the issue in 2016, my only ambition in involving myself in this Bill is to secure a lasting solution to the issue of contributions to political funds that can stand the test of time, as I hoped the 2016 compromise would. The purpose of my amendment is to oppose the move to an opt-out mechanism until we have more justification for such a change and greater clarity about some of the questions I have outlined.

[Lord Prentis of Leeds (Lab)]

My Lords, I speak in favour of the Employment Rights Bill unamended and declare an interest as I was general secretary of the UK’s largest union, UNISON, for over 20 years. It has over 1.3 million members; over 1 million of them women, mainly low paid. I have seen at first hand over those 20 years the good which our political funds can do. In my own union the political funds support our campaigns—campaigns to reform the social care sector, which we have talked about often in this place; campaigns for fairer pensions for women, for better rights for disabled workers and human rights in Northern Ireland—and, something I am particularly proud of, our anti-racism work.

Our political funds support projects to bring children from Asian and white communities together. They fund our work tackling racism as part of HOPE not hate, and our work with footballers on Show Racism the Red Card in schools and at football matches over the past 20 years. The fund is used to send films to every school on the horrors of the Holocaust. It is used for ground-breaking initiatives to build fairer and safer communities. What many do not realise is that, without using the resources of our political funds, it would be unlawful for trade unions to campaign politically on behalf of members in any pre-election period—not just Westminster elections but all elections. The slow drain of money from the political funds caused by the 2016 Act and arrangements is having a serious effect on the right that trade unions have had for more than 100 years: the right to campaign politically.

How political funds are used varies from union to union. Many unions have political funds that are not affiliated to any political party, such as the National Education Union, the NASUWT and PCS, to name just three. Only 13 of the 48 unions in the TUC are affiliated to the Labour Party. My own union is affiliated, but it always makes it transparently clear when a member joins that their political contribution goes either to the Labour Link or to the non-affiliated section of the fund known as the campaign fund. New members can choose to pay into one or the other or both—or, until 2016, they could opt out. There were no subscription traps. New members were not misled. There were no barriers to opting out, and the opting out arrangement, as has been said, operated for more than 60 years through Labour, Tory and coalition Administrations before the 2016 Act.

It is with this in mind that I reflected on the contribution made by the noble Lord, Lord Burns, in reaching a way forward in 2016. I thank him for that, but I do not think that his amendment today should be progressed. It proposes that the 2016 arrangements continue under any new legislation. I ask the noble Lord not to pursue the amendment. Despite his good efforts, the 2016 arrangements have not proved a long-term solution for trade union political funds. They are gradually being drained of resources and, with that, so is the ability to campaign.

More to the point, in any democracy there will always be the threat that any incoming Government could put the clock back. There is always a very real possibility that we could get consistent ping-pong on many policies, not just on the political funds. Unfortunately, even if we leave things as they are, there is no guarantee that any change of government would not lead to another trade union Act more draconian than the 2016 Act. The possibility of consistent ping-pong in itself is not an argument for leaving things as they are; neither is it an argument for not returning to the principle of opting out, which operated for 60 years.

The Trade Union Act 2016 did what it intended to do. It deliberately placed considerable and costly burdens on trade unions, and it sought to reduce funding to the Labour Party. That was its purpose. But in doing that, it also compromised the ability of trade unions to provide a campaigning and political voice for working people in our country. That is why the Employment Rights Bill, unamended, is so important. That is why I ask noble Lords not to pursue the amendments to the political fund clauses of the Bill but to allow it to move forward unopposed.

18:45

[Baroness Finn (Con)]

My Lords, I speak in support of the amendment tabled by the noble Lord, Lord Burns. I apologise that I was not able to speak at Second Reading, but I did have the pleasure of working on the Trade Union Act in 2016. I well remember the setting up of the Select Committee on Trade Union Political Funds and Political Party Funding. Its report forced the requirement for new members to opt in to the political fund following its recommendations.

The committee was brilliantly chaired by the noble Lord, Lord Burns. I know that phrases such as “showed the best of this House” can sometimes be overused, but in this instance it was absolutely the case. It reported, I think, in five weeks. The secretariat was absolutely magnificent. The most important thing was that it was a cross-party committee and produced a cross-party consensus on the recommendations in all but one area, which I will return to.

One of the key considerations, and the one that is pertinent to this amendment, was the Conservative Party’s manifesto commitment that, in future, union members would be asked to opt in to contributing to their political fund, rather than just being given the opportunity of opting out. At the time, most members of a union with a political fund paid a political levy into the fund unless they took the active decision to opt out of doing so. I remember that the Select Committee spent a long time debating this. I hear the noble Lord, Lord Prentis, who said that this was the established practice for 60 years, but there was quite a strong debate. My noble friend Lord King felt that the King-Murray agreement had not been met in full with the requirements to report opting out.

The report produced some very helpful conclusions. One of the most relevant to today’s debate was that no one challenged the principle of moving from opt-out to opt-in. There were differences of opinion about how and when to make the move and, critically, whether it should apply to existing members, but the report basically accepted the principle. The Labour Party had some understandable concerns. It was fearful that a move to opt-in would mean that many union members would decide not to contribute to the political fund and that such a move was fundamentally unfair.

However, when Sir Nick Clegg appeared before the Committee, he said:

“I regard political opinion, affiliation and support as a sovereign decision for an individual citizen”.


He was, of course, completely right. Opt-in is supported because people should not be assumed to support any proposition, organisation, product or service, simply because they have failed, often through inertia, to say no. Companies have been rightly pilloried when they have assumed that the customer has signed up to something because they failed to tick a box or to see the small print. If a trade union member decides that he or she does not wish to contribute to a political fund, that is their decision; they should have the opportunity to actively choose to do so.

The behavioural experts consulted by the committee gave some powerful evidence about the impact of inertia on human behaviour. At the time, the power of inertia benefited the unions because only 11% of their members made the effort to opt out of the political fund. Under the then Government’s proposals, inertia would work against the unions. Human nature meant it would be extremely difficult to persuade existing members to make an active choice about whether to opt in. Indeed, Dr David Halpern of the Behavioural Insights Team said that analogous situations led him to expect a fall of 20% to 30% in political fund participation rates.

That brought us on to the second consideration, which was that the move to opt in for existing members would have an impact on the funding of one particular party, the Labour Party. On balance, the committee concluded that there would be a significant reduction in union payments to the Labour Party. The committee agreed that one way of easing this dilemma would be to distinguish between the requirements for new members and those for existing members of trade unions. For new members, it was unanimously agreed that opt-in was the correct way forward. Across many different walks of life, it is increasingly recognised that people should be asked to exercise an active choice and that organisations should not rely on inertia. The recommendation that, after a minimum transition period of 12 months, anyone joining a union with a political fund should pay the political levy only if they have actively chosen to do so was subsequently incorporated into the Trade Union Act 2016. It is that consensus that the Labour Party is seeking to undo today with this Bill.

This was not the case in the treatment of existing members. The fear was not of existing members choosing to opt out rather than opt in, but that they would simply choose to make no choice at all. I recall many heated discussions about whether the opt-in system should be extended to existing members, perhaps on a longer transition period than for new members, or whether existing contributors should not be included in the Act—option two. This was because it was feared that extending the opt-in to existing members would have a significant negative effect on union and Labour Party funding, even with an extended transition period. I well recall those discussions. The noble Lord, Lord Burns, talks about considerable unhappiness on our Benches, and he is not understating the case: when the second option was chosen, there were howls of “Bad faith!” It was at a critical juncture in the Brexit referendum period.

I rather subscribe to the view of Sir Winston Churchill:

“It has become a well-established custom that matters affecting the interests of rival parties should not be settled by the imposition of the will of one side over the other, but by an agreement reached either between the leaders of the main parties or by conferences under the impartial guidance of Mr Speaker”.—[Official Report, Commons, 16/2/1948; cols. 859-60.]


Paragraph 115 of the Select Committee report stated:

“If any government were to use its majority unilaterally to inflict significant damage on the finances of opposition parties, it would risk starting a tit-for-tat conflict which could harm parliamentary democracy”.


So, while it is wrong for a Government to use their power to undermine their opponents, it is also wrong for a Government to act in a way that leaves it open to question whether they are acting in the interests of the country as a whole or the interests of their own party.

The Labour Party’s dependence on trade union funds means that a policy could potentially be seen to be up for sale. Just as I had sympathy at the time with the need not to inflict damage on the finances of an opposition party, I find myself now more than a little bothered that the Labour Benches are seeking to unwind the unanimously agreed principle of opt-in so that their own party’s finances will be improved. I am sure that they would not wish to be accused of the abuse of entrusted power for private gain, but that is the effect of Clause 59. It is for this reason, and because of the compelling and universal arguments in favour of opt-in, that I have added my name in support of this amendment from the noble Lord, Lord Burns.

[Baroness O'Grady of Upper Holloway (Lab)]

I am sorry to do this to the noble Baroness, Lady Finn, on her birthday, but she was in a very key position in government for some time, so it would be helpful if, first, she could confirm, on the issue of ballot turnouts, that the previous Government, over their 14 years, received repeated representations from trade unions to enjoy the same rights that political parties enjoy to safe and secure balloting in a bid to boost democratic turnout in ballots, so that we would be able to encourage and engage more members in ballots. What we got, I think, was a review and a promise of a pilot that was never seen again.

Secondly, comparisons were made between trade union membership and subscriptions to commercial services, whereas, of course, membership of a democratic organisation which exists to defend your rights is not the same as a subscription to a for-profit service.

Finally, because we have heard a lot in this debate about balance, can the noble Baroness confirm whether the previous Government ever considered shareholders having the right to veto political donations by companies? I have never even heard of a shareholder’s right to opt out, never mind a requirement that they should opt in before a political donation is made by a company.

[Baroness Finn (Con)]

My Lords, I thank the noble Baroness for her intervention. I cannot speak to the balloting, et cetera, which is out of the scope of this amendment. I can say that shareholders in companies are able to vote at their company’s AGM.

I did not pay tribute in my speech—and I apologise to the noble Lord, Lord Prentis—to the brilliant political campaigns that were run by UNISON when I was in government. They were remarkable, and my support for opt-in does not diminish my admiration for them.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, very briefly, I support the amendment in the name of the noble Lord, Lord Burns. I want to emphasise that, in a period of mass disillusion with mainstream parties, opt-in was actually a very important way of putting those parties on their guard that they had to inspire people to want to opt in. Relying on inertia, or not being in a situation where you feel you need to go out and win the support of people to opt in politically, is very dangerous, because it will create the kind of complacency that we have seen mainstream parties of all sides show over recent years.

I note that it would be dangerous—and I am sure that nobody is implying this—for the party of government, the Labour Party, to assume that it is any longer the party that represents the working class. Long gone are the days when that claim could be made, and I think that it would be better for that party to consider how it can inspire ordinary working people to support it, both at the ballot box but also in relation to something such as political funds. I had every sympathy with the noble Lord, Lord Prentis of Leeds, talking about the difficulties of campaigning when you do not have enough money. Tell me about it: I have been doing it for years. I have not had a political fund to help, mind.

It all sounded very admirable, but it really did sound as though the noble Lord was discussing not so much UNISON but an activist campaign group, a particular group around particular issues. That is fine. I have no objection to that: I am involved in some of those campaigns, although not all of them. I have to go out and raise the funds in order to be able to carry on campaigning for things I believe in. I do not think it is right that trade unions use their political funds to pursue what are political issues beyond the issues of trade unionism. Trade unionism is a particular thing. It can inspire great political revolutions over the years, I agree, but it is not a hobby-horse for trade union bureaucrats to pursue the particular political issues that they enjoy or agree with.

[Lord Jackson of Peterborough (Con)]

My Lords, I shall primarily speak to the amendments in my name and that of my noble friend Lady Cash in respect of political funds, but I will say in passing that I found the speech of the noble Lord, Lord Burns, and the excellent speeches of my noble friends Lady Coffey and Lady Finn not just erudite but very compelling.

There is a challenge to try to understand what has significantly changed that has led the Government to make these epochal amendments to what has been accepted by Governments of all persuasions—including, as has been said, the Blair and Brown Governments—which will radically alter industrial relations.

19:00

There has hitherto been a consensus on opt-in versus opt-out in the delivery of goods and services, particularly financial services. I say gently to Ministers that what is good for the goose is certainly good for the gander. If, in banning opt-out selling in financial services, you have the laudable aim of protecting consumers from being ripped off, then why does that not apply to people making decisions on trade unions based on facts and empirical evidence?

Noble Lords will remember that in 2016, to take one example, the Financial Conduct Authority banned opt-out selling in financial services to prevent consumers being defaulted into purchasing add-on products. In other words, they were no longer automatically enrolled in add-on products unless they actively chose to be. As I recollect—I served in the other place then, but my memory might be wrong and I am prepared to be corrected—the then Opposition, the Labour Party, supported it. If it is good for financial services and if the inherent merits of joining a trade union cannot be sold to people to encourage them to opt into a union, that speaks volumes. Notwithstanding what the noble Lord, Lord Prentis, has said—as I have said before, I am not anti-trade union; I was a member of one and they do an excellent job in providing, for instance, commercial services to their members—there is something slightly sinister and pernicious about changing what came before, which was amended by previous Governments.

I will allude briefly to the two amendments in my name, because I have a feeling that my noble friend Lady Cash will be much more erudite and fluent in her exposition of them. Amendment 219 would reduce the period within which trade unions must provide an opt- out notice to their members after the passing of a political resolution from eight weeks to four. If we genuinely hope to improve this Bill, there should always be the test of whether these things wreck or undermine the nature of this Bill, which, with their election mandate, the Government are entitled to bring forward. The answer to that question is no; on the test of reasonableness and balance, this amendment stands on its own merit, as it would essentially encourage trade unions to come forward with the notice in a timely fashion, and that would not necessarily invalidate the inherent merits of Clause 59.

Amendment 220 would reduce the period within which trade unions must provide an opt-out notice to their members after the 10-year anniversary of the passing of a political resolution, on the same timescale. It is sensible, practical and fair in terms of the service delivery for individual members, who may wish to explore the possibility of opting out. That does not mean it is a green light to opting out. I suspect that a shop steward or other senior person in the workforce would persuade a trade union member that they were best off staying in the union, but that information should nevertheless be provided. With those provisos, I would be interested if the Minister would address the issue of reasonableness.

[Baroness Cash (Con)]

My Lords, I support the amendments in the name of the noble Lord, Lord Burns, those from my noble friend Lady Coffey—which I have signed, as she referred to—and those in the name of my noble friend Lord Jackson, as well as Amendments 222, 223 and 218A. I hope I have covered all of them. I also support this group in more general terms. I draw the Committee’s attention to my interests as declared in the register, in particular that I am a significant shareholder in a listed business, so I am an employer, and that I am a member of the Equality and Human Rights Commission.

I want to address what is a fundamental attack on one of the rights under the Human Rights Act by which we incorporated the European Convention on Human Rights into this jurisdiction. There is a fundamental democratic right not to be forced to support a political party, either unwittingly or by coercion—though I am not by any stretch of the imagination suggesting that this is by coercion. My noble friends have referenced financial services and the noble Lord, Lord Burns, referenced issues with data protection. We know that there are major problems with fundamental infringements of people’s rights when we have opt-out scenarios. People unwittingly continue to subscribe to pay when they should not do so.

Unlike my noble friend Lady Coffey, who politely said that she was surprised by this government proposal, I am shocked, because some noble Lords on the Government Benches have as much knowledge of human rights and the European Convention on Human Rights as I do. They will know that, under Article 11, there is a right to free association. We are guaranteed both the right to associate freely and the right not to be compelled into supporting associations or political causes.

This has been the subject of a number of decisions in the European Court of Human Rights. I know the Prime Minister has talked tentatively about whether we will remain part of the court, but for the time being we are and therefore have to abide by its laws and decisions. It made it very clear in a decision called Young, James and Webster v United Kingdom in 1981 that compelled political donations are incompatible with Article 11, unless free and informed consent is given by the individual.

There may be those on the Government Benches who think that that is fine because it is covered by the period of notice and the person can then opt out, but it does not cover that. There is no mechanism at all in the Government’s proposals to facilitate any refund. I am grateful to the noble Lord, Lord Prentis; I see that he is surprised by that comment, but there is no refund mechanism. The way that the measures are currently drafted means that there is a minimum notice period for an individual to be notified of their rights to opt out of up to eight weeks. After that, one payroll cycle is allowed before the opt-out takes place. That means there is the possibility of three months’ worth of subscription or levy being taken from an individual employee to contribute to the Labour Party. Let us not beat about the bush: this is a compelled donation to a political party.

[Lord Barber of Ainsdale (Lab)]

Will the noble Baroness permit an intervention? As my noble friend Lord Prentis mentioned, there are 48 unions affiliated to the TUC; 13 of them also affiliate, subscribe and contribute to the funding of the Labour Party, and 35 do not. Most of those 35 have a political fund which they use to support their campaigning, but not to make contributions to the Labour Party.

[Baroness Cash (Con)]

I am very grateful to the noble Lord for that assistance. I therefore look forward to the amendment put forward by the Government to exempt those 13, given the law that I am explaining and the attack on the freedom of association that should be maintained in this country.

[Lord Hendy (Lab)]

Will the noble Baroness permit me to intervene? She spoke about Article 11 of the European Convention and freedom of association, and the right to join a trade union and be a member for the protection of one’s interests. This is spelled out in Article 11.1. She mentioned the case of Young, James and Webster v the United Kingdom, which established that there is a negative right not to become a member of a trade union, as well as a positive right to become a member. However, the European Court of Human Rights has never held in any case that a member of an organisation, a political party or a trade union can opt out of a particular payment that that organisation is making.

[Baroness Cash (Con)]

I am grateful to the noble Lord for his intervention, but he is wrong. The European Court has ruled that it is not possible. Article 11 does not permit compelling any citizen of this country, or any member of a trade union, to make a payment by political association. That is simply not correct.

[Lord Hendy (Lab)]

Let me put it more respectfully: I disagree. That is not what the jurisprudence of the European Court of Human Rights on Article 11 demonstrates. There is no right, if you are a member of the Royal Society for the Protection of Birds, to opt out of any contribution or expenditure it makes on any particular objective. There is no such right established under Article 11. You can opt out of being a member of the organisation, but you cannot opt out of what it has decided to spend its money on. All you can do is exercise your rights under its constitution to object or decide it should be spent on something else.

[Baroness Cash (Con)]

The noble Lord is, very respectfully, making interventions which do not follow the law. I will quote a couple of other cases because that may assist the debate: Sigurdsson v Iceland, and Sorensen and Rasmussen v Denmark. The noble Lord can join the Royal Society for the Protection of Birds, and whether or not he opts out is not a matter for this debate. We are talking about the freedom to join a trade union, and the asking of those who have signed up to be a member of a trade union to contribute to campaigning funds—political funds. It is that political association—the taking of funding for that political association—which infringes the Article 11 right.

[Lord Hendy (Lab)]

Forgive me, but those two cases do not demonstrate that. I am familiar with this jurisprudence; I suggest that the noble Baroness read the cases again.

[Baroness Cash (Con)]

I understand that in this House people sometimes disagree, and perhaps, respectfully, that is happening here. I can give way as many times as the noble Lord likes, but it is plain from the case law and the jurisprudence, and from how Article 11 is taught at law school, where I have taught it as a guest, that this is how freedom of association applies.

After an opt-out has been introduced, there is no refund mechanism available to cover the period during which the funds will be taken by 13 of the trade unions and passed to the Labour Party. At least we are now agreed that 13 of the unions will be giving the funds to the Labour Party. In those circumstances, we are compelling people to support it. It is because the Human Rights Act and the European Court jurisprudence intervened—that was part of the conversations when the opt-in was considered. Looking at the contributions, financial or otherwise, made during that period, I am very grateful to the noble Lord, Lord Prentis, for drawing our attention to the decrease in political funding that has ensued because of the change. We know that that is why this change back needs to be made, but that does not make it right.

19:15

The opt-in change was made in March 2018, and by 2022 the figure of 86% had dropped to 71%. Of some 4.6 million of those who were opting out, 3.8 million opted in. The figures for the next stage are not available until the middle of this year. The data shows a drop of 800,000 people. Scanning the unions, the average political levy is £10, although it may be that I have not scanned the exact 13. None the less, the points stand regarding political campaigning. I am grateful to the noble Baroness, Lady Fox, for drawing our attention to those points. These are big sums of money. I have heard, and respect, the points made by the noble Lord, Lord Prentis; none the less, they are not a reason for changing the fundamental democratic right not to have to give money for which there will be no refund mechanism.

It is of course open to the Government to create that mechanism and ensure that the money is refunded. That has not been contemplated and put into the Bill.

[Lord Monks (Lab)]

I was around when the noble Lord, Lord Burns, was chairing his committee and I was involved on the fringes of some of the work that was done. From the unions’ side, we appreciated very much what he did and the work the committee did with his colleagues. Getting that kind of arrangement was a get out of jail card for us—a halfway house, if you like, which is still promoted.

We were aware of the history. In 1927, when the Conservative Government introduced opting in instead of opting out, there was a catastrophic fall in the number of people who contributed to the union political fund; that was the truth of it. Unions did not have the administrative superstructure to go around and re-recruit people into that kind of arrangement. That was repealed by the Labour Government at the end of the Second World War, such was the anger about 1927—it was about the first thing they did. Hartley Shawcross, the Attorney-General, unwisely said, “We are the masters now”, which caused a lot of controversy, so this is not a bloodless issue. This is about party funding and the sinews of keeping a great party going under a lot of pressure from all kinds of people.

We were very pleased, and warmly welcomed the work that the noble Lord, Lord Burns, did. We had made an offer that maybe all party-political funding should be looked at. If there was some uneasiness about aspects of Labour’s arrangements, there is certainly some uneasiness about Conservative Party arrangements, which are not noted for their clarity and openness and all the other things the noble Baroness, Lady Coffey, and others have been extolling as virtues, which they are trying to install into the union world. We hear a lot from the Conservative Party about deregulating business all over the place, but—

[Baroness Finn (Con)]

I thank the noble Lord for giving way. I just make the point that all political donations have to be transparently declared. My noble friend sitting next to me can explain more, as treasurer of the Conservative Party, but they are all declared.

[Lord Monks (Lab)]

I look forward to that degree of clarity in Conservative Party funding. We could all be enlightened by the explanation that I believe is about to come. We are talking about an amount of—

[Lord Leigh of Hurley (Con)]

We had an excellent debate 10 years ago. With great respect, the noble Lord, Lord Monks, said that the transparency and clarity of donations to the Conservative Party leave something to be desired. Can he please be specific about this?

[Lord Monks (Lab)]

I will not be specific about it because I do not want to generally insult people, but over the years, there has been some dodgy funding of the Conservative Party. Maybe something has been done about it; maybe it has not. The noble Lord will tell us in a moment, I am sure.

I will say something about the amount of money we are talking about, which the noble Baroness, Lady Cash, touched on. In 2016, when I was much more au fait with this debate than I probably am today, the contribution that the union member made to the Labour Party was not much more than the price of a pint of beer. It has gone up a little bit if it is 10 quid now, but it was a modest amount. Comparisons with financial services, as the noble Lord, Lord Jackson, has made, are wrong, because the sums of money we are talking about there are much greater, and refunds, and all the rest of it. The kind of administrative fee that would be required for that amount of donation seems ridiculous.

On this side, we very much see this as an attempt to restore some Labour Party funding streams. I do, anyway—I will not speak for the Front Bench. I think it is important that the Labour Party gets the funding that it requires. I believe that going back to 1945, 1946 and so on is the right way to go, so I support the Government and the Bill.

[Lord Johnson of Lainston (Con)]

My Lords, I apologise for not having spoken at Second Reading, although I have been watching this debate with great interest. As chairman of the Conservative Party, I am delighted that today we announced record donations into the Conservative Party. None of those donations was forced; none of them was given to us because we compelled people to give them to us; and they were not given to us because of an administrative system that prevented people taking their money out or opting out. It was because people voluntarily wanted to support the cause that we stand for.

On the same day that we announced record inflows, thanks in many instances to my noble friend Lord Leigh, the Labour Party also saw significant donations, not substantially to the level of the Conservatives’. I think half of the donations came from unions, but some came from a number of individuals, including in this House from the noble Lord, Lord Alli—who I cannot see in his place—who continues to support the Labour Party and is a good lesson for all Peers to support the parties which fostered them.

The point is that in our democracy, we live in an extraordinary country where voluntary contributions make up how parties are funded. At the essence, if you distort that, you have enormous problems with how the public perceive politics and the responsiveness that political parties need to show to the public who support them in the first place.

I am a great proponent of the union movement. I think it is an essential element of capitalism—it ensures that there is balance between labour and capital—but if you distort that, you distort the economy, nearly always to the negligence of the people who are members of those unions.

The reason I have not spoken before is that it had not actually occurred to me the sort of damage that this Government are trying to do to this country. I could not believe that it was going to be the case that people will be compelled, in effect, to join the Labour Party or to contribute to it—I had to sit in these debates and read back transcripts. We just heard from the noble Lord, Lord Monks, who said exactly this: this is absolutely about redressing the balance in terms of party funding and to fund the Labour Party.

By the way, I respect that openness. The unions paid for the Labour victory and now they want to have their message delivered; they want the legislation moulded in their way. That is brutal politics of a kind that, frankly, I am just a bit squeamish about—but I rather admire.

I ask the Minister: is it really true that she is expecting people to be compelled to donate to a political fund, and that there is no mechanism for some form of compensation or redress if they decide to opt out? In a world where we can subscribe instantly to Apple Music, or whatever it is, at the touch of a button, and we are compelled to ensure that people’s subscriptions are reviewed on a constant basis, certainly annually at the absolute minimum, probably quarterly or maybe even monthly—rightly so—is it true that this mechanism will be reviewed every 10 years? It cannot be true that the Government are proposing 10 years beforepeople can see whether they should review their paperwork for a subscription to a political fund. This is remarkable.

I am actually amazed at the audacity, and I slightly admire it, as I said, but if we want a strong democracy and political parties that actually have trust placed in them by the people of this country, this sort of chicanery and gerrymandering is extremely dangerous. The amendments that have been proposed by Cross-Benchers are exceptionally eminent in the sense of making sure that we have a fair system to ensure that unions can indeed represent themselves politically. They can and should build political funds to advance their aims and some of the aims they have advanced over the last century or so are admirable, and I applaud them. But this must not be a mechanism for compelled donation to the Labour Party. It would be a disaster for our democracy, it would not benefit our unions and it would not help our country in any way at all—that is why I support these amendments today.

[Lord Leigh of Hurley (Con)]

My Lords, I support the amendments and congratulate the speakers today—in particular, the noble Lord, Lord Burns. I recall the debate some 10 years ago. I declare—although it has been declared for me—that I am senior treasurer of the Conservative Party and have been so for very many years.

The last time we had this debate, it was, shall we say, feisty. I was intervened on 12 times in one speech, which might be a bit of a record. It was a constructive debate, and I believe a solution was agreed. The noble Lord, Lord Monks, says it is a get out of jail for the unions. We wanted more and for it not just to be new members—we wanted it to be existing members—but a compromise was agreed that everybody felt was fair. I hope that in the spirit of this debate, the noble Lord, Lord Monks, reflects on his remarks and finds an opportunity to withdraw any suggestion that there is anything dodgy or not clear about political donations to our party—I would not make the same allegations about his party—because it is not the case. There is strict legislation on declaring donations and we are very careful to abide by it.

The world is an upside-down sort of world, is it not? In actual fact, the single largest donation to the Labour Party is not from unions—it is from an individual person who came to this country, made a lot of money and chose personally to give a large sum of money to the Labour Party. Good luck to him. To echo the point made by the noble Lord, Lord Johnson, we should commend and thank those people who wish to contribute politically to this country in whatever form they choose to do so, either going up and down streets waving leaflets and delivering them or choosing to give financially. Such people are good citizens to whom we owe a debt of gratitude.

The other upside-down world, of course, is the comment made by the noble Baroness, Lady O’Grady, about shareholders. Public companies have an opt-in system. Every year, not every 10 years, shareholders have to vote for donations to be made to a political party if their company wishes to do it. So there is an opt-in for public companies, not that many public companies make donations to any political party—although I noticed in today’s submissions to the Electoral Commission that companies have chosen to give to the Labour Party, and good luck to them.

The history lesson that we have had is appropriate and relevant, because there is an element of toing and froing. The Burns report highlighted problems that had been in existence before the 2016 Act. It is worth reminding ourselves of those problems, because one would not want to see them again.

The Burns committee was told that the deal that existed between the Thatcher Government and the TUC had not been fulfilled, and that too many unions had failed to ensure that all union members were always aware of the fact that they did not need to contribute to the political fund. The then Government submitted written evidence that added that

“many unions that have a political fund are not transparent with members on their membership subscription forms about the existence of a political fund”,

and that

“their choice to opt-out of contributing to the fund; or the level of the member’s contribution towards the fund”

was not made clear. It stated that, of the 25 unions that had political funds in those days, 12 did not mention, on the subscription form,

“the existence of a political fund. Of the 11 unions that do reference a political fund … 5 do not make it clear that a member has a choice to opt-out”.

That was then, and that is not a situation that anyone, I think, would want to see come back—but there is a danger of that with this legislation.

19:30

Many of these amendments are needed because, as the Burns report highlighted,

“7 out of 10 trade unions with political funds in Great Britain make no reference at all to the right to opt out on their membership forms … Only 1 in 10 provides a clear choice on the opt-out”.

It is true that it was buried on some of the unions’ websites, but it was not clear on the forms.

That takes me to the amendments about the form of the opt-in or the opt-out. From the TUC’s evidence to the Burns report, it is clear that there was significant variation on how different unions decided to convey the opt-out information to their members. In some instances, it was on membership forms, but in others it was not. It would be good to see a consistency of information for all members.

To my mind, the Clause 77 stand part notice is one of the most important parts of this group of amendments. As the noble Lord, Lord Prentis, said, the political fund is not just a political fund but a campaigning fund. There is no reason why that cannot be the case. As the noble Lord indicated, many of the campaigns have been excellent in stamping out racism and so on, which we would all applaud. But there may be some elements of the campaigning fund that some members of unions would not be so happy to see.

Until the 2016 Act, that was not disclosed. The last time we debated it, I had the unions’ accounts in the Chamber, and there was no reference to where the money was being spent at the time—so the 2016 Act reversed that. My reading of this Bill is that the certification officer will no longer receive details of how the money in the fund is spent, and that information will not be available to members. If they are happy, members would in fact be giving their money to a political fund.

According to the then general secretary of the Labour Party, Mr Iain McNicol—now the noble Lord, Lord McNicol—54% of the fund was used for other purposes, and so roughly half was used for campaigning. That is fine, but there should be complete transparency and clarity about where the money is going—and there was not. Indeed, some members of the Labour Front Bench tonight might be interested to know, for example, that BDS campaigning was extensively financed by unions; in fact, nearly all unions financed an element of BDS campaigning. That was not made clear to members, who were giving their money in good faith.

I strongly urge that Clause 77 is not agreed and that steps are taken to make sure that every penny spent by a political fund is revealed to all union members.

[Baroness Lawlor (Con)]

My Lords, I support the amendment of the noble Lord, Lord Burns, and the amendments seeking greater transparency for trade union members on where their money goes.

I support the retention of the status quo—so that people have to opt in—and maintaining the changes we saw made in 2016. I do so because these are moderate amendments. They do not attack the existence of the status quo or the political fund, which is, as is often announced on the websites of the unions, a campaigning fund. I agree with the noble Lord, Lord Prentis, that it is made clear by UNISON and Unite to new members, when joining, what their fees are for. Certainly, it is clear to the public that some members are affiliated to the Labour Party, and some of the funds of political campaigning will indeed go to the Labour Party. I think the noble Lord, Lord Hendy, said that 13 were affiliated; I had the figure of 11 in my head, but that is only a small difference.

None of that is under attack; that is a subject for another debate. I would like to stress to your Lordships why I support the noble Lord, Lord Burns. This area has been very contentious for a century, and every single attempt to reach a settlement has involved compromise. Although one may think that the opting-in arrangement of the 1927 Act was against the interests of the trade unions, one has to remember that that was in the wake of the General Strike of 1926 and that the Conservative Party, which was the party of government, would not follow the inclination of many of its Back-Benchers—and, I think, one of its Front-Benchers, but I will not say whom —to get rid of the political fund. The Prime Minister of the day said, “We will not fire the first shot”.

That was an attempt to find a compromise, so that the trade unions could keep their political fund, continue to contribute to the Labour Party—which was a founder party and recognised as such by the Conservatives—and continue to campaign on the issues they judged important for their members. I agree that they have done great work, through their membership fees, on pensions and so on. Much of the settlement on the national insurance system not only drew on trade union knowledge and experience in practice but used their funds to nationalise —which I think was a less good idea.

We should have a spirit of compromise and reflect the compromise that was made in 2016. If we go down the route that the Government propose, I hope that the party on my side will again seek to bring in a compromise, because the laws of this Parliament should be made in the interest of transparency for all those affected by them. That goes for trade unionists in the workplace, who should have to opt in to a scheme in the interest of transparency. I support the amendment from the noble Lord, Lord Burns.

[Lord Goddard of Stockport (LD)]

My Lords, I will be extremely brief, as the dinner hour is upon us and there are—as we say—strangers in the House.

While I recognise the importance of transparency to inform members’ choice regarding funds, this group of amendments raises serious questions about proportionality. Amendments 216YC and 216YD would introduce notably higher thresholds for political resolutions, requiring support from a majority of all eligible members, rather than just those voting, and mandating new resolutions every five years. These are significant changes from the current practice. Likewise, Amendments 221 and 223—expertly explained by the noble Lord, Lord Burns—seek to reduce opt-out notices from 10 years to one or two.

While the intention behind these proposals is clear, the impact warrants careful consideration. Other issues have been slightly sidetracked. There are fundamental issues that I would like the Minister to address head-on. These issues are at the nub of trade unions and political funds, so we need some clarity on them from the Dispatch Box.

[Lord Hunt of Wirral (Con)]

My Lords, what an important debate this has been. I think 14 noble Lords have participated, starting with my noble friend Lady Coffey. She dealt with Clause 58 in particular, whereas most of the rest of the debate has been around Clause 59.

I am very grateful to the noble Lord, Lord Burns. His speech dominated the debate, as he set out so clearly the history of what he described as the 2016 compromise—which in fact it was—that Clause 59 now seeks to overturn. I accept the points made by the noble Lord, Lord Prentis of Leeds, about the importance of campaigning and seeing full participation in that area. I am also very grateful to my noble friend Lady Finn for coming specially on her birthday to remind us all of the role she played on the Burns committee. Despite interruptions, she got across a series of key points about that compromise. Those who were interrupting her did not seem to realise that shareholders have to approve any political donations made by companies—but never mind.

I move on quickly to the noble Baroness, Lady Fox of Buckley, and my noble friends Lord Jackson of Peterborough and Lady Cash, who had a fascinating exchange with the noble Lord, Lord Hendy. I have to say to the noble Lord, Lord Hendy, speaking now as a practising lawyer, that my noble friend Lady Cash is right: if money is taken for any period without knowledge or consent, freedom of association has been removed—it does not matter whether it is for a week, a month or a decade. In a way, though, that was a side issue.

The noble Lord, Lord Monks, then took us way back in time. We all always benefit from the noble Lord, Lord Monks. I still have the guilty feeling that I caused a cartoon to be shown in the Guardian showing him getting into bed with me, in which his was the face on a huge cart horse. I was Secretary of State for Employment, and I was being accused by the Guardian of being too nice to the trade union movement by getting into bed with the noble Lord, Lord Monks—but we are not in the same bed tonight.

We heard from my noble friend Lord Johnson of Lainston, who really put the record straight and elevated the sort of smears that were thrown—usually from a sedentary position—from the party opposite in that context. My noble friends Lord Leigh and Lady Lawlor did the same. I thank the noble Lord, Lord Goddard of Stockport, for really trying to encapsulate what has been a very complicated and detailed debate.

Let us be clear on one thing—and it is up to the Minister to respond to all the very valid points that have been raised: Clause 59 says that workers will be presumed to consent to union political contributions unless they actively opt out. This is a fundamental shift. It reverses the presumption of consent in a way that would never be tolerated were it an employer imposing such terms on a worker. Where, then, is the Government’s concern for free choice, transparency and the dignity of the individual to act without coercion? Surely, if we are to be consistent in protecting worker autonomy, we must apply the same standards to trade unions as we do to employers. Anything less is not principle; it is partisanship.

The Bill includes provisions that would require employers to provide workers with written statements outlining their trade union rights on day one of employment and at other points that the Government see fit. But until Amendment 218 comes along, that principle appears to vanish entirely so far as political fund contributions are concerned. A worker can be enrolled into a union and begin contributing to political causes, most often aligned with one single political party, without ever being clearly and directly told what that money supports or how to stop contributing. I believe that to be a serious democratic deficit.

19:45

Amendment 218B, which I strongly support, would require trade unions to maintain a simple, accessible and clearly described process for members to submit opt-out notices from political funds. This amendment seeks to address those challenges head-on: by requiring unions to ensure that the opt-out process is simple, easy to find and does not place an undue burden on members; that at least one user-friendly digital option is available, reflecting the ways people communicate today; that the process is clearly described and easy to locate, so members are not left guessing where to go or whom to contact; and that the system is regularly tested and maintained to ensure it actually works. Of course, the role of the certification officer in providing guidance and setting technical standards will help ensure these requirements are not just words on paper but are effectively implemented.

Amendment 218C, which I strongly support, seeks to protect union members from any detrimental action or pressure when they exercise their right to opt out of contributing to political funds.

I turn, as I must, to Amendment 218D. While we do not support the broader day-one rights agenda presented in the Bill, it is important to call out the inconsistency if such rights are to be introduced selectively. If the Government insist on imposing a day-one information requirement on workers, it is only logical and fair that this principle extends to union members’ rights regarding political fund contributions. The right to opt out is a fundamental choice, yet too often union members will find themselves automatically enrolled in political funds without being properly informed.

Finally, Amendment 223B would empower the certification officer to conduct audits of trade unions to access compliance with political fund opt-out rules. When non-compliance is found, the certification officer must issue directions requiring the union to remedy any failures within a specific time frame.

In conclusion, we come back to the very key Amendment 217. The noble Lord, Lord Burns, made a compelling argument that all of us should think very carefully before we seek to negative and opt out of a consensus view that was reached—as we understand it from the noble Lord, Lord Burns—unanimously so far as any future members of trade unions were concerned. What could be more compelling than that? We wait with great interest to hear what the Minister is going to say. I personally found the arguments of the noble Lord, Lord Burns, to be as compelling now as they were in 2016.

[Baroness Jones of Whitchurch (Lab)]

My Lords, I thank the noble Lords, Lord Sharpe of Epsom, Lord Jackson of Peterborough and Lord Burns, and the noble Baroness, Lady Coffey, for tabling their amendments.

I start by speaking to Amendment 217. I thank the noble Lord, Lord Burns, for the constructive engagement that we have had on the topic of political funds in recent weeks and for his thoughtful contributions to this debate. I echo the points a number of noble Lords have made on that. I am grateful for his considerable work in chairing the Trade Union Political Funds and Political Party Funding Committee in 2016, and to the noble Baroness, Lady Finn, for her work on that committee.

However, the Government’s view is that the political fund changes brought in by the Trade Union Act 2016 had the impact of limiting unions’ ability to raise funds to enable them to campaign on political issues that were important to them. Therefore, as we have been debating, the Bill repeals the requirement for trade unions to opt out their members from contributions to political funds, unless they have expressly requested to opt in. This will mean that new trade union members will be automatically opted in to contributions to a political fund unless they expressly opt out.

The noble Baroness, Lady Finn, talked about Churchill’s quote on avoiding tit for tat in parliamentary democracies. However, what we are proposing broadly restores the position before the passage of the Trade Union Act 2016, which had been the position for the previous 70 years. So our proposal is a very long- standing set of propositions. I should also say to noble Lords that the change we are proposing will apply only to new members of a trade union, with the current opt- out status of existing members remaining unchanged.

Several noble Lords have described workers as being “compelled” to make political donations to the Labour Party. This is simply not the case. It remains a decision for each individual trade union member that they are free to make as to whether they wish to contribute to any political fund of a trade union.

The Government have been mindful of the conclusions of the Trade Union Political Funds and Political Party Funding Committee, and indeed we have learned lessons from that report. I can reassure the noble Lord, Lord Burns, and indeed the noble Lord, Lord Leigh, and others, that we have been careful to draft the Bill to ensure that new members will continue to be notified of their right to opt out on the membership form that they will have to fill in when they join the union. In line with the recommendation in the report of the noble Lord’s committee, the membership form will also have to make it clear that opting out will not affect other aspects of their membership.

This is a substantial change to the legal requirements that existed pre 2016. These changes to the system that existed before 2016 should help to address concerns that trade union members were not always aware of their right to opt out of the political fund. Unions will also be required to send an opt-out reminder notice to members on a 10-year basis.

We have been clear on our intention to substantially repeal the Trade Union Act 2016, as set out in our Make Work Pay plan. Retaining the automatic opt-out, as proposed by this amendment, would frustrate the goal and maintain unnecessary and burdensome requirements on the way that trade unions manage their political funds.

I should have responded earlier to one of the other questions from the noble Lord, Lord Burns, about the Government’s impact assessment. The Government’s impact assessment on the repeal of the Trade Union Act set out:

“The return to an ‘opt-out’ option for political fund contributions for new union members with political funds may increase the proportions of new members contributing to the political fund in these unions”.


So we have made an assessment of that.

I also say to the noble Lord, Lord Jackson, and the noble Baroness, Lady Cash, and others, that what we are proposing is clearly not the same as consumers spending billions of pounds each week on unwanted subscriptions due to unclear terms and conditions and complicated cancellation routes. What we are proposing here is that a union, which is a collective of workers, and its political fund should be considered in that light. If a union has a political fund, its members have control over how their political fund is spent, through the democratic structures of the union. Unions put considerable effort into raising engagement in their democratic processes, which any member is free to participate in, meaning that they are able to decide on how their political fund is used.

I am grateful for my noble friend Lord Prentis for reminding us of that and indeed giving us some very good examples of how his political fund has been used in campaigning. He and others also made the point that less than half of the unions that have political funds affiliate to the Labour Party. Indeed, only a minority of Labour Party funds at the last election came from unions’ political funds.

I turn to Amendments 221, 222, 223, 223A and 223B, tabled by the noble Lord, Lord Sharpe. Section 84A specifies that a union must send information notices reminding its members of the right to opt out of contributing to the union’s political fund, should one exist. Amendments 221, 222 and 223 would introduce the requirement on trade unions to send those notices to members every two years, as opposed to every 10 years, as specified in the Bill. We acknowledge that the removal of the 10-year political fund review ballots could reduce awareness among trade union members of their right to opt out of the political fund contributions. This is why we amended the Bill to require that unions send opt-out reminders on a 10-year basis.

The Government believe that 10 years strikes the appropriate balance between maintaining awareness among members of their right to opt out of contributing to a political fund while minimising the administrative and cost burdens on unions of providing such a notification. It also reflects the current arrangements for the 10-yearly review of ballots and recognises that the Bill will ensure that new members will already have been made aware of their right to opt out when they apply for union membership.

Amendment 223A would require unions to issue opt-out information notices that comply with specific requirements. The Bill will require unions to issue opt-out notices that comply with the rules of the union. Unions must provide the certification officer with a copy of their opt-out notice. Members of a trade union will be able to complain to the certification officer if they do not believe that an opt-out notice complies with Section 84A of the Trade Union Labour Relations (Consolidation) Act 1992. In those circumstances, the certification officer can issue an order to remedy this failure if the complaint is upheld. So this amendment is unnecessary as there are already requirements for opt-out notices that unions must comply with.

Amendment 223B would grant the certification officer the capacity to conduct audits of opt-out notices to monitor compliance with Section 84A of the Trade Union and Labour Relations (Consolidation) Act 1992, as amended by the Bill. The legislative framework as amended by the Bill will allow the certification officer to investigate complaints from members about failure to comply with Section 84A, but the power to conduct audits is unnecessary and disproportionate to the rest of the powers of the certification officer, who will continue to hold their powers after the repeal of the Trade Union Act.

Amendment 218, tabled by the noble Lord, Lord Sharpe, would require trade union members to confirm their ongoing willingness to contribute to a political fund on an annual basis, and they would need to be given an annual notice about their right to opt out of the political fund. As I have mentioned, we believe that requiring unions to issue opt-out reminders to members every 10 years is proportionate and aligns with the current frequency of 10-year review ballots. The Government also believe that, if members have joined a union and are notified of their right to opt out, their decision not to opt out clearly reflects their consent to make political fund contributions. Asking members to reconfirm their willingness to contribute to the union’s political fund on an annual basis would impose an onerous and unnecessary burden on unions and their members. Indeed, members are not currently required to restate on a regular basis their preference to either opt in or opt out of political fund contributions.

Amendment 218B, in the name of the noble Lord, Lord Sharpe, would alter Section 84 to require unions to provide members with a defined means of opting out of political fund contributions, including a digital option and allowing the certification officer to issue guidance or prescribe minimum technical standards on the opt-out notice. We are already clear in the Bill that members of a trade union are able to be served an opt-out notice via post, email, completion of an electronic form or such other electronic means as may be prescribed. Therefore, we are already making it easy and straight- forward for members to express their decision to opt out should they so desire. The certification officer already issues a set of model rules for political funds, and the rules of every union’s political fund must be approved by the certification officer.

Amendment 218C would create a statutory right for members not to suffer any detriment when deciding to opt out of political fund contributions, and it would allow members to complain to the certification officer where they feel that that right has been breached. Such an amendment is unnecessary, given that Section 82 of the Trade Union and Labour Relations (Consolidation) Act 1992 already compels unions to inform members in their union rules that they shall not be placed at a disadvantage or disability compared with other union members, nor will they be excluded from benefits, if they decide not to contribute to the political fund. Members can also complain to the certification officer if that rule is breached.

Amendment 218D would require unions to issue an opt-out reminder notice on the day that a member joins the union. Through Clause 59, which amends Section 82 of the Trade Union and Labour Relations (Consolidation) Act, we will require unions to inform members of their right to opt out of political fund contributions on any forms, including electronic forms, that members must complete in order to join a union. This requirement will make the need to provide new members with an opt-out notice on joining a union superfluous.

20:00

On Amendments 219 and 220, tabled by the noble Lord, Lord Jackson, new Section 84A stipulates that a union must send opt-out information notices to members within eight weeks of passing a resolution under Section 73 of the Trade Union and Labour Relations (Consolidation) Act to establish a political fund, and within eight weeks of every successive 10-year period thereafter. This mirrors the current arrangements around opt-out information notices, whereby unions are required to issue such notices within eight weeks of their annual return to the certification officer. It is reasonable to grant unions a grace period in which to distribute these reminders to their members, and the eight-week period follows existing precedent in the 1992 Act.

On Amendments 216YC and 216YD from the noble Baroness, Lady Coffey, Clause 58 will amend Section 73 of the Trade Union and Labour Relations (Consolidation) Act to remove the requirement on unions to pass a political resolution every 10 years to maintain the union’s political fund. The proposal in Amendment 216YC would reverse the effects of Clause 58 and require a majority of all union members to vote in favour of a political resolution, rather than the simple majority that is currently required.

The Government consider these 10-year review ballots an unnecessary and onerous requirement. These ballots, as we have discovered, can cost tens of thousands of pounds and they are complex to set up. The amendment would reverse the effects of Clause 58 and require a majority of all union members to vote in favour of a political resolution rather than the simple majority, as currently required, to either establish or maintain a political fund.

There have been no instances of members choosing not to maintain their political fund through this 10-year reballoting arrangement. Unions have their own internal democratic structures that members can use if they oppose the existence of their union’s political fund, so we feel that these amendments are unnecessary. Requiring a majority of all members in the union to vote in favour of that political resolution goes beyond the current conditions for passing a political resolution and would be an unreasonable requirement to impose on unions.

Amendment 216YD would also undo the effects of Clause 58 and continue to compel unions to hold regular review ballots on the question of maintaining their political fund. Instead of holding them every 10 years, however, the amendment would require unions to hold them every five years. The Government oppose 10-year review ballots for the reasons I have previously given. The amendment would go beyond current arrangements and place greater obligations on unions than is currently the case. As I have said, no political fund has ever been closed by members as a result of these review ballots, so we feel that they are unnecessary.

On Amendment 218A, tabled by the noble Baroness, Lady Coffey, new Section 84 provides details of the opt-out notices that members can provide to their union if they do not want to make contributions to their political fund. This amendment would alter the relevant day on which the opt-out notice takes effect after being issued by the union member. Where a member is part of a trade union that already has a political fund in place, the Bill provides for opt-out notices to take effect on the subsequent 1 January after it is issued by the member. The amendment is intended to require those opt-out notices to take effect immediately.

The 1 January date reflects arrangements that were in place prior to the introduction of the Trade Union Act 2016. To reiterate, we are committed to repealing that Act and the intention is largely to return to the well-understood situation as it was prior to 2016. Opt-outs taking effect on 1 January provides unions with clarity regarding their political fund. It allows them to plan how to make best use of those funds and enables a more straightforward administrative process. Where a new political resolution is passed to establish a new political fund for the first time, opt-out notices become effective on the day the notice is given.

These amendments are not supported by the Government. The political fund measures in the Bill will simplify the political fund processes and avoid imposing burdensome requirements on unions and their members. We believe that the amendments are disproportionate, overly bureaucratic and impede unions’ ability to plan for their future activities.

I will now speak to Clause 77 and the opposition to it from the noble Lords, Lord Sharpe and Lord Hunt. Clause 77 is intended to repeal amendments made to the Trade Union and Labour Relations (Consolidation) Act and thereby remove the requirement for trade unions to include specific information about their political expenditure on their annual return to the certification officer. Currently, this information must be provided where a union spends more than £2,000 per annum from its political fund. Subsection (2) removes Section 32ZB from the 1992 Act, which outlines the information that needs to be included in the trade union’s annual return on political expenditure. Other subsections make further amendments to the 1992 Act that are consequential on the removal of Section 32ZB, such as its enforcement and application to employers’ associations.

I say to the noble Baroness, Lady Coffey, the noble Lord, Lord Leigh, and others that trade unions will still have to report to the certification officer on their income and expenditure. This includes reporting on the income and expenditure of their political fund, but the specific additional information on political fund expenditure over £2,000 introduced by the Trade Union Act will no longer be required. Additionally, all political parties will still be subject to the reporting requirements set out in the Political Parties, Elections and Referendums Act 2000, which requires certain donations and loans to be recorded and reported to the Electoral Commission.

I hope that the noble Lord, Lord Goddard, and other noble Lords feel that I have explained—

[Lord Leigh of Hurley (Con)]

Can the Minister clarify—to be absolutely crystal clear—that, by removing Section 32ZB, union members will have absolutely no idea where campaign money is being spent?

[Baroness Jones of Whitchurch (Lab)]

I thought I answered that: the information on the expenditure of the political fund will still have to be given to the certification officer.

[Lord Leigh of Hurley (Con)]

With great respect, I asked whether union members would have clarity as to where their money was being spent.

[Baroness Jones of Whitchurch (Lab)]

I am absolutely confident that unions’ accounts, which will include the political funds, will be available to all members in the usual way. I am sure that is a requirement.

[Baroness Bousted (Lab)]

I can inform the noble Lord that unions have to produce an executive report for the membership every year. That is available to all the membership; it is on the union’s website. In most unions, by the rulebook, the executive report is the first thing debated at conference. All the union’s activities and expenditure are described and explained to the membership in that report, including the amount of the political fund and the expenditure of the political fund. It is the same with the international fund and the campaigning fund. This is a requirement, as part of unions’ democratic processes, to make the executive accountable to the membership, and the information will be contained in the executive report.

[Lord Leigh of Hurley (Con)]

I am grateful for that. I am sure that the Minister will agree that, if that is true—and it certainly was not pre-2016—there can be no resistance to it being included—

[Baroness Bousted (Lab)]

It was true pre-2016.

[Lord Leigh of Hurley (Con)]

It was certainly not disclosed in the political fund accounts, which are not the same as the union accounts; they are separate accounts. Those political fund accounts did not specify where the campaign funds were spent.

[Baroness Bousted (Lab)]

The noble Lord asked where the members would get the information. That is the question to which I have replied. He is now saying that they are not disclosed in another place, but that was not the question I was answering.

[Baroness Jones of Whitchurch (Lab)]

I think we have answered that question in quite a lot of detail now. I hope that noble Lords feel that I have answered these points in sufficient detail.

[Lord Hunt of Wirral (Con)]

We appreciate the detail that the Minister is going into, but a number of questions have not been answered. Can she undertake to write to noble Lords with the answers? Also, can she clarify whether, if a union member fails to opt out of contributing to the political fund on day 1, they could then be bound not to have the opportunity to opt out again for 10 years?

[Baroness Jones of Whitchurch (Lab)]

I am absolutely confident that union members can opt out at any time, not just every 10 years. It is the reminder that goes every 10 years, rather than the requirement for them to remain.

We have had a very detailed, long debate, and I have attempted to answer all the questions noble Lords have raised. If there are any outstanding issues, I will write. In the meantime, I ask the noble Baroness, Lady Coffey, to withdraw her Amendment 216YC.

[Baroness Coffey (Con)]

My Lords, I thank all noble Lords who have contributed to this extensive debate. There are still a number of issues on which there is not agreement, either on the nature of the legislation or the desired effect.

I particularly thank the noble Lord, Lord Burns. I am conscious that this is going over old ground, but he is right to resurrect it and to put his concerns forward. On the exchanges between my noble friend Lady Cash and the noble Lord, Lord Hendy, in any legal debate, normally we come up with one winner. However, in this case, it is fair to refer the noble Lord to paragraph 251 of the Bill’s human rights memorandum, where the Government specifically state that:

“Implicit in Article 11 is a right not to contribute to a trade union’s political fund”.


I would be grateful if the Minister would, unusually perhaps, be open to sharing the legal or policy advice on the bracketed portion of that paragraph: that

“the opt-out will take effect on 1 January of the following year”.

That is why my noble friend Lady Cash was pressing the point that continuing to have to pay would not, according to various judgments, be compatible with Article 11.

That said, I am sure that we will return to a lot of this on Report. I beg leave to withdraw the amendment.

Amendment 216YC withdrawn.

Amendment 216YD not moved.

Clause 58 agreed.

Clause 59: Requirement to contribute to political fund

Amendments 217 to 223B not moved.

Clause 59 agreed.

House resumed. Committee to begin again not before 8.54 pm.