Tuesday 10th June 2025
(2 days, 17 hours ago)
Lords ChamberEmployment Rights Bill 2024-26 View all Employment Rights Bill 2024-26 Debates Read Hansard Text Watch Debate Amendment Paper: HL Bill 81-VIII Eighth Marshalled list for Committee - (6 Jun 2025)
Lord Sharpe of Epsom
“(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 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.
Lord Sharpe of Epsom
“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.
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?
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.
“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.
Lord Sharpe of Epsom
“(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.
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.
Member’s explanatory statement
This amendment is consequential on my amendment of Schedule 6 at page 218, line 17.
Member’s explanatory statement
This amendment is consequential on my amendment of Schedule 6 at page 218, line 17.
(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.
Member’s explanatory statement
This amendment is consequential on my amendment of Schedule 6 at page 218, line 17.
Member’s explanatory statement
This amendment is consequential on my amendment of Schedule 6 at page 218, line 17.
Member’s explanatory statement
This amendment is consequential on my amendment of Schedule 6 at page 218, line 17.
Member’s explanatory statement
This amendment is consequential on my amendment of Schedule 6 at page 218, line 17.
“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.
Member’s explanatory statement
This amendment is consequential on my amendment of Schedule 6 at page 218, line 17.
“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.
(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.
“(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.
(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.
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.
Member’s explanatory statement
This amendment is consequential on my amendment of Schedule 6 at page 249, line 32.
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.
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.
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.