Post Office

Debate between Baroness Clark of Kilwinning and Jo Swinson

Wednesday 27th November 2013 Commons Chamber

[Jo Swinson]

I am happy to look in more detail at some of the specific technological issues that the hon. Lady raises. The money we are announcing today is for a continuation of the network subsidy for the three years and to invest in the future network transformation programme. Of course, we must ensure that the central IT systems, managing a network of nearly 12,000 retail outlets, are also fit for the 21st century. I will happily get back to her with further details.

[Katy Clark (North Ayrshire and Arran) (Lab)]

Will the Minister explain why, despite what she says, Government work undertaken by post offices has gone down by more than 7% over the past year? Surely she should be doing more to get new work for the Post Office.

[Jo Swinson]

The hon. Lady is right that Government work is important for the Post Office. As the Minister responsible for the Post Office, I am engaged in promoting and encouraging that. Obviously, the Post Office must win work on its merits, and the environment is competitive. Whether we are talking about the mail market, the retail market or bidding for Government work, a range of competitors would be more than happy to take some of the contracts. It is a testament to the strength of the Post Office that, despite that strong competition, it has continued to win contract after contract, but I am in no doubt that bidding for that work on a more competitive basis creates significant pressures, particularly for some sub-postmasters.

Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Bill

Debate between Baroness Clark of Kilwinning and Jo Swinson

Wednesday 11th September 2013 Commons Chamber

[Jo Swinson]

If that is how the hon. Gentleman describes my answer to his hon. Friend, I would be interested to hear how he would describe several of the speeches we heard during the debate.

Trade unions have a significant impact on the lives of people in our country. We want to ensure that their membership lists are up to date, and everyone has an interest in that being achieved. As hon. Members have said, we know that that can often be a challenging process, for good reasons, so we want to provide assurance that it will happen.

Clause 36 will give wide assurance that unions know how to contact their members so that their decisions will reflect what their members want. We do not want to change the vital and positive role that unions play in society, but we do want to give confidence in their accountability.

Under section 24 of the Trade Union and Labour Relations (Consolidation) Act 1992, unions have to ensure that their lists of members’ names and postal addresses are accurate and up to date

“so far as is reasonably practicable”.

That section allows any union member to find out whether there is an entry relating to him or her and to see a copy of the information. Clause 36 builds on that by making unions give the certification officer an annual membership audit certificate alongside the annual return that they already submit. Clause 37 provides that a union with more than 10,000 members will have to appoint an independent assurer to produce the certificate, as well as setting out what is required for that process, but clause 36 states what smaller unions with fewer than 10,000 members will have to do. They will be able to have a union officer sign off the certificate with a statement that, to the best of their knowledge, the union has complied with its duties under section 24. I hope that the Committee will agree that that is a pretty light-touch approach and that the duty is not onerous in the slightest. Of course, we expect that smaller unions will have a less complicated register, so it is reasonable that a union officer would know the content well enough to be able to make such a statement.

As the clause is designed to give widespread assurance, all unions of any size will have to let anyone who asks to see their most recent certificate to do so, for which they may charge a reasonable amount, if they want. The certification officer will have to keep copies of all certificates and to allow the public to look at them. Subsections (3) and (4) allow a trade union to fulfil the new duty on behalf of its branches and require that federated unions comply with the new duty. Our aim is not to change what unions should already be doing to maintain their membership data, but to get them to provide assurance of what they are doing to their members and the public.

[Katy Clark]

rose—

[Lady Hermon]

rose—

[Jo Swinson]

I shall give way to the hon. Member for North Ayrshire and Arran (Katy Clark) and then to the hon. Member for South Down.

[Katy Clark]

The Minister said that unions have some influence and she is trying to give assurance. Does she accept that trade unions and trade union members have very little power in society compared with many other organisations, such as multinationals and other vested interests? Does she not think it is inappropriate that she is focusing on this area rather than trying to give all of us more assurance that some of those other organisations which hold massive power in society are brought into check?

[Jo Swinson]

The hon. Lady raises a point that others have raised, which I will come to in my remarks about the regimes that are in place for different types of organisations. The trade unions have their particular tailored regime, which is appropriate. We would not necessarily want the same regime to apply to charities, trade unions and political parties. It is appropriate that we have systems in place that deal with those particular organisations.

I said that I would give way to the hon. Member for North Down—apologies for getting the constituency name wrong.

--- Later in debate ---

[Katy Clark]

Does the hon. Lady not accept that there is a suspicion that the issue is about industrial action? If the assurer is to prepare for the audit and certification, surely that process could be challenged; it would be yet another matter that could be brought up in the context of an employer’s seeking an injunction to stop industrial action of some sort. Is she not simply creating more avenues for litigation?

[Jo Swinson]

The short answer is no. The longer one is that the case law is clear. As has been outlined in the past two or three years, small and inadvertent errors that would not have affected the outcome of a ballot are not grounds for an injunction, and it is right that that should continue.

[Katy Clark]

rose—

[Jo Swinson]

I want to make progress, because we want to scrutinise other elements of the Bill today.

My hon. Friend the Member for Stevenage (Stephen McPartland) made a powerful contribution. He mentioned that social pressure can be applied to make people go on strike; those at the workplace who are not members of a particular union may be affected by industrial action. They might be an example of those who would like reassurance about the updating processes for the membership lists.

The right hon. Member for Wentworth and Dearne (John Healey) asked whether we would commit to publishing legal advice. As he will know from his time as a Minister, the convention is that the Government do not publish such advice. I am, of course, happy to give reassurance on his point. Clause 36 requires the provision of the certificate but will not contain information about individual members, so the article 8 right to privacy is not breached. I am sure that when we discuss the next group of amendments we will come to some of those human rights, privacy and confidentiality issues.

The hon. Member for Inverclyde (Mr McKenzie) said that data would be revealed in some way, but the confidentiality of members’ details will still be subject to data protection rules, the Human Rights Act and the obligations of confidentiality in clause 37.

The hon. Member for Hayes and Harlington (John McDonnell) said that the provisions would displace core union activity, but we should recognise that the changes are modest. Unions are already required to keep the register of names and addresses and of course we will work with unions and others to ensure that there is a smooth transition to the new system, supported by appropriate guidance.

Analogies with other membership organisations were raised by various Members. As I outlined to the hon. Member for North Ayrshire and Arran, charities are regulated by the Charity Commission, which has widespread powers that focus on financial management because of the importance of donors and beneficiaries. The commission can carry out regular supervision and monitoring, including compliance visits. If a charity is under investigation, the commission can freeze assets and suspend or remove trustees. In the case of companies, the Companies Act provides the regulatory powers. The information has to include names and addresses and dates of membership, and fines and penalties are in place for non-compliance with these duties. The IOD and the CBI are lobbying organisations incorporated by royal charter, which means that the Privy Council is responsible for significant aspects of their internal control. I doubt that unions would think that those regulatory frameworks were appropriate to their unique status. Trade unions have a unique set of powers. They have rights and obligations—for example, the ability to take industrial action without financial liability for the consequences on those it affects. That is a special set of rights and it is therefore appropriate that they have a tailored set of regulations.

The hon. Member for Leyton and Wanstead (John Cryer) said that it is hard to keep accurate records of a work force, particularly in sectors where they are very fluid, such as construction, where there is significant churn. I absolutely appreciate those points and agree with him. That is why it is important that good procedures are in place to provide assurance that the lists are up to date. That is qualified by the phrase,

“as far as reasonably practicable.”

We will take into account the difficulties that are encountered.

The hon. Member for Aberdeen North made a thoughtful contribution in which he made good points about previous problems with great swings in policy direction from one Government to the next and the importance of trying to get agreement between the TUC and the CBI. There can often be common ground, as we find through the agreements on, say, the agency worker regulations or the way in which such organisations are able to work together through institutions such as the Low Pay Commission. He thinks that we are demonising trade unions, but I respectfully disagree. Many companies have very good relations with trade unions which play an important and welcome role. He over-eggs the impact that this measure will have.

I have dealt with the consultation issue raised by the hon. Member for Wansbeck. The hon. Member for Blaydon (Mr Anderson) made a number of points that mainly echoed others that had already been made and that I think I have dealt with. I appreciate that I may not have satisfied every member of the Committee. None the less, I have set out why clause 36 should stand part of the Bill and the amendments should be rejected.

--- Later in debate ---

[Jo Swinson]

I will come on to the issues relating to the assurer. I would like to deal with data protection sensitivity and turn to the issue of blacklisting before I come back to the specifics about the assurer, if the hon. Gentleman will bear with me.

The hon. Member for Edinburgh South was asked by the hon. Member for Birmingham, Selly Oak (Steve McCabe) about penalties if there is a breach of data protection or confidentiality issues. Various protections are in place. The assurer would have to comply with the Data Protection Act. If they did not do so, they would be in breach of their contracts, so as well as being removed, the union could sue them. However, the assurer would also be a data controller, so the Information Commissioner could take action. The Information Commissioner has significant powers under the Data Protection Act, which include serving an enforcement notice setting out action that the data controller must take and—where required to address a serious contravention of the duty—imposing a fine of up to £500,000. Failing to comply with an enforcement notice by the Information Commissioner is also an offence, so there are significant protections in place.

The hon. Member for Hayes and Harlington (John McDonnell) and others raised the important issue of blacklisting. Let me reiterate on the record—my right hon. Friend the Secretary of State and I have said this on various occasions in the House—that the blacklisting of trade union members is unacceptable and illegal. Following an investigation, of which the Committee will be aware, that uncovered the Consulting Association’s blacklist, the law was strengthened at the end of the previous Parliament by the Employment Relations Act 1999 (Blacklists) Regulations 2010. That was also when the maximum fine for a breach of data protection rules was increased to £500,000.

The Committee will also be aware that the Select Committee on Scottish Affairs has been conducting an inquiry into this issue. In July, the Committee contacted the Secretary of State to say that it had new information that blacklisting continues. We have always encouraged anyone with evidence of blacklisting to come forward so that we can investigate. The Scottish Affairs Committee is the first to get in touch formally to say that it possesses new information. We are grateful to the Committee for passing that information to the Department. We have referred it to the Information Commissioner’s Office, as the appropriate body to investigate any breaches of the Data Protection Act. I understand that the office is requesting more information from the Committee, so that it can examine it and investigate. My right hon. Friend and I will of course continue to take a close interest in this matter. If any evidence of blacklisting is found, the perpetrators must feel the full force of the law.

Let me turn to the amendments in this group. Amendment 107 would make the assurer owe a duty of confidentiality to the union and its members—this deals with the concerns raised about data protection. I hope that the protections I have outlined will reassure hon. Members about compliance with the existing legislation, even though it is not explicitly mentioned in part 3—the convention is to keep legislation concise and not to repeat existing legal requirements. I am happy to reassure the Committee and put it firmly on the record that compliance with the Data Protection Act will be necessary for anyone who handles sensitive data.

Amendment 108 would require the Secretary of State to set out eligibility criteria for the assurer—this goes to the point about the future career ambitions of the hon. Member for Wansbeck—along with what qualifications, status and experience assurers must have. Our approach will be the same as for independent scrutineers of trade union ballots and elections. It is important that the assurer has widespread credibility with unions, their members and the public. The order will say which organisations are eligible or list the criteria that must be met. We imagine that assurers will probably be recognised professionals, such as solicitors, auditors or independent scrutineers. The responses to our targeted consultation over the summer supported that approach. I am not sure whether the hon. Gentleman falls into any of those categories, but he might be interested to know that we will need to consult on the content of the order, and I give the Committee an assurance that we will do so. There will therefore be an opportunity—this is important—for unions, their members and the public, as well as the hon. Gentleman, to comment.

[Katy Clark]

The hon. Lady was asked in an earlier intervention how she would deal with potential conflicts of interest. Will she deal with that now?

[Jo Swinson]

I gave some examples of where there might be a conflict of interest, such as where somebody was already an officer of the union, which would not be appropriate, as they would need to be independent. However, as I have set out, there will be a process in the order for outlining eligibility.

Postal Services (Rural Areas)

Debate between Baroness Clark of Kilwinning and Jo Swinson

Monday 2nd September 2013 Commons Chamber

[Katy Clark]

Does the hon. Lady not accept that what Members have been saying today is that the commercial pressures will be on both Royal Mail and the Government to reduce those universal service obligations if privatisation goes ahead?

[Jo Swinson]

It is up to Parliament to defend that universal service. That lies in Parliament’s power. We have protections in place through the 2011 Act because the Government recognised that that is an important service. [Interruption.] Members heckle from a sedentary position, but I highlight that it was the coalition Government who enshrined the universal service in legislation, not the previous Government. I think that it is incumbent on all Members of Parliament to ensure that we protect that, because it can be changed only if Members of Parliament decide to do so. I can certainly give an undertaking that I have no desire to do so. Perhaps Opposition Members are worried that they might feel under too much pressure and cave in; that is all I can imagine must be the cause of the concerns they are raising.

Whistleblowing

Debate between Baroness Clark of Kilwinning and Jo Swinson

Tuesday 11th September 2012 Westminster Hall

[Jo Swinson]

I thank the hon. Gentleman for his intervention and kind words, and for his contribution to my knowledge on this matter. I have not come across that new organisation which has only been in existence for a month, but my approach is to welcome any organisation or individual that wishes to ensure that its concerns are heard. I would be happy to read a submission from that organisation if he is able to pass on its contact details after the debate.

The hon. Lady mentioned concerns about the burden of proof, which she felt would be unhelpful to individuals. Clearly, it will be up to the tribunal to decide whether that test is met. I do not think that having to bring something in the public interest is a hurdle that will stop people bringing cases forward. It will promote consistency in the legislation and underlines the principle that the 1998 Act, with the right and proper extra protections it offers, is concerned with a public rather than a private interest. In the autumn statement, we announced we would fix that specific issue, and it will be done through the Enterprise and Regulatory Reform Bill.

The hon. Lady raised a wide range of issues. There are no current plans to review the legislation more widely as the Act is generally operating well and as intended, but I will reflect on the matters she has raised in such a thoughtful manner.

The Government provide guidance on making protected disclosures, and the hon. Lady asked about how it would be promoted. Of course, in light of the proposed change under the Enterprise and Regulatory Reform Bill we will consider whether the guidance needs to be revised at all. I understand the genuine concern relating to the survey that suggests that many people are entirely unaware of the protection. It is worth putting on the record the Government’s thanks for the excellent efforts made by Public Concern at Work in promoting the 1998 Act and bringing it to the attention of more workers. It is important that it is widely understood.

The hon. Lady asked a specific question about whether lawyers will inform their clients. They have a general duty to advise a client on any aspect of the law that is relevant to the situation, as she will know from her professional life, and that includes advising on public interest disclosure rights. That does not need to be set down in legislation, but is a duty that any legal professional would fall under.

Turning to other issues that were raised, there has been a suggestion from Public Concern at Work that the Government should copy the vicarious liability provisions of the Equality Act 2010. Aspects of the 2010 Act are currently under review, particularly in relation to vicarious liability. While that is ongoing, further changes to PIDA would be premature. I am also aware of the concern about the judgment in the Fecitt case, in particular. An employee who blows the whistle could be subject to inappropriate bullying behaviour by other members of the work force, and the concern about the ruling was that employers would perhaps not have a responsibility to do something about that. The ruling was specific, however, and took the view that in that case the NHS had taken reasonable steps. Therefore, I would not necessarily assume that there is a guarantee that employers never need to do anything. The judgment is perhaps not as crystal clear as some would like, but clearly an employer that does not do enough to prevent an employee being victimised by other employees could themselves be liable for their failure to act if it can be shown that the employee has made a protected disclosure, so there is perhaps some reassurance about those concerns.

There is another potential remedy in the law. An employer could be vicariously liable under other legislation, such as the Protection from Harassment Act 1997, depending on the circumstances of the individual case. It is also possible that an employee who had experienced that could argue that the employer had acted to destroy the relationship of mutual trust and confidence, and thereby bring a claim for constructive dismissal.

On the Shipman inquiry and the good faith test, we do not see its purpose as being interchangeable with the public interest test. The good faith test prevents an individual from making a disclosure for a malicious purpose; for example, to deliberately cause commercial damage to their employer. The public interest test deals separately with the fact that the disclosure must be of public, rather than private interest. The good faith requirement is not intended to operate as an additional barrier to genuine whistleblowers.

The hon. Lady raised the Leveson and Mid Staffordshire inquiries. They are large inquiries in their own right and deal with a wide array of different issues, much wider than the specific provisions of the Public Interest Disclosure Act. The Department of Health has published its response to the Mid Staffordshire inquiry and is continuing to promote whistleblowing in the NHS.

On the categories and definitions of “worker”, we are already in dialogue with stakeholders and the Department of Health about the categories of worker that are covered. It is important that individuals who should be included are not inadvertently excluded from the scope of the Act. I hope the hon. Lady will be reassured that those discussions are ongoing with a genuine desire to ensure that people are properly covered.

The hon. Lady asked for a more thorough, wide-ranging review of the Act in its entirety. At the moment, there is not necessarily a case for that, but, as I said, I will reflect on the points that she has made. There are various issues, and it is important to ensure that they are all considered on an ongoing basis.

[Katy Clark]

I particularly raised concerns about the way that the NHS operates in its use of gagging clauses. Will the Minister discuss that with the Department of Health? There is a great deal of public concern that information it would be helpful to have in the public domain is not being put there because of individuals’ fear of victimisation.

[Jo Swinson]

I will certainly undertake to bring that issue to the attention of my colleagues in the Department of Health. I share the hon. Lady’s concerns and will come back to her on them. We need to ensure that the protections in the Act are being properly applied, so I will look at the issue. On the whole, we believe that the Public Interest Disclosure Act continues to work well. The change we are making in the Enterprise and Regulatory Reform Bill will provide clarity for individuals and employers. It will maintain protection for genuine whistleblowers and prevent misuse of the legislation. We remain convinced that it is the best way to ensure that the Act maintains its purpose, effectiveness and credibility.