Lord Kerslake
Main Page: Lord Kerslake (Crossbench - Life peer)
Lord Kerslake
“(3) Subsection (1) shall not come into force until—
(a) an independent report is published, and laid before each House of Parliament, which has been prepared by the Central Arbitration Committee in consultation with qualified independent persons, on the delivery of secure methods of electronic, postal and workplace balloting for the purpose of ballots held under section 226 of the 1992 Act, and(b) the Secretary of State has considered the report and published, and laid before each House of Parliament, a verification strategy for the rollout of secure electronic, workplace and postal balloting methods for the purpose of ballots held under section 226 of the 1992 Act.(4) The Secretary of State must publish and lay before each House of Parliament the strategy provided for by subsection (3)(b) no later than two months after the date on which this Act is passed.
(5) The report provided for by subsection (3)(a) must include—
(a) an analysis of different methods of authentication that can be used to enable voters to cast their electronic votes such as single use security codes, personal identification information or membership affiliation information; (b) an assessment of the ability of electronic voting systems to identify that the information being provided to authenticate the voter is the information required to enable a vote to be cast and recorded in that particular ballot and that the information is unique to the voter;(c) an assessment of the ability of trade unions appropriately to secure means of distribution required for the delivery of electronic voting information to maintain the security and integrity of any ballot;(d) a cost benefit analysis of the risks involved in methods of distribution such as email, post, text messaging and face-to-face methods;(e) an assessment of existing recognised industry standards for online voting systems; and (f) analysis of the role of third party administrators and the benefits of using rigorous quality assurance procedures and processes for delivering electronic voting.(6) The verification strategy provided for by subsection (3)(b) must include an assessment of how alternative, secure, methods of balloting will impact voter turnout.
(7) For the purpose of preparing the strategy, the Secretary of State must consult relevant organisations including professionals from expert associations to seek their advice and recommendations.”
Lord Kerslake (CB)
My Lords, I rise to move Amendment 1 and indicate my support for the other amendments in this grouping. The central tenet of all the amendments, tabled and supported by Members of all parties and none, is the same: namely, that if we are to introduce thresholds on trade union ballots before industrial action is taken, we should seek to enable the widest range of methods for members to place their vote.
This seems such an obviously right thing to do that it is surprising to me that we have to debate it. If we believe that important decisions on whether to take industrial action should have the widest possible engagement and participation of those involved, we must surely all want to take whatever practical steps we can to encourage it.
Currently, ballots for industrial action can take place only through postal ballots. However, ballots for trade union recognition, which apply the same thresholds as proposed in the Bill for industrial action, can now take place through workplace ballots, so we already have a difference. At present, neither can be done through electronic balloting.
Digital technology has moved on fantastically since the Trade Union and Labour Relations (Consolidation) Act 1992 was passed. We now expect routinely to undertake activities such as banking and shopping in a way that would have been unimaginable then. Today, 82% of adults are online. The public in general and trade union members in particular now expect to have the digital choice—an important point. It is a choice that their trade unions ought to be able to give them. The Government’s own policy is to be digital by default in the delivery of their services.
There is absolutely no doubt that electronic balloting can be made to work. I used it myself in Sheffield for the local and general elections as far back as 2007. The use of electronic voting has come on in leaps and bounds since then. For example, in 2014, more than 400 organisations throughout the UK provided their stakeholders with the opportunity to cast votes electronically using the services of Electoral Reform Services Ltd, an independent supplier of ballot and election services. These involved a wide range of bodies from companies to community-based organisations, with more than a million votes cast.
ERS is confident that it can meet the required standards for ballots under the 1992 Act—namely, that those who are entitled to vote have the opportunity to do so; that votes are cast in secret; and that the risk of unfairness or malpractice is minimised. It believes that it can meet all those tests. Given the widespread use of electronic balloting, the only possible remaining issue is security.
As a former returning officer, I take the issue of voting security very seriously. We should take every practical step to ensure that ballots of all types are as secure as they can possibly be. However, we should also be realistic and say that no system of voting can be made completely and utterly secure, just as no system of online banking can be completely protected from fraud. Therefore, the question is whether electronic balloting can be done in a way that is as secure, if not more so, as postal balloting. That is the key test. I am absolutely convinced that it can, and there is good evidence from Electoral Reform Services and others to back that up.
The response from Ministers so far to what I think is a perfectly reasonable request from the trade unions is to raise—rather vaguely, in my view—security concerns and then to seek to push the issue off for another day. I really do not think that this is an adequate or fair response when there is an opportunity to deal with the issue now. My amendments therefore propose that before the thresholds set out in the Bill come into force, two things should happen: first, an independent report should be undertaken by the Central Arbitration Committee on the delivery of secure methods of electronic, postal and workplace ballots; and, secondly, the Secretary of State should have considered this report and laid before each House of Parliament a verification strategy for the rollout of such balloting methods. I have set a timetable of two months after the Act has passed for the strategy to be done.
The amendment would allow the CAC, a well-established and respected arm’s-length public body, to look at the issues objectively and to give us its views. It is well within the remit of the CAC to undertake this review. Indeed, there is provision within its regulatory framework to introduce electronic methods for recognition ballots now—a provision that has so far not been taken up. The CAC has considerable experience in organising secure ballots but would not claim to be expert in electronic balloting. I have therefore included in the amendment provision that it could draw on an independent qualified person who is such an expert.
I am absolutely persuaded that we could securely introduce electronic and workplace balloting now. However, I recognise that to date this has not been the Government’s position. I have therefore, through this amendment, sought to meet the Government half way. Whether they are prepared to go the other half will be a test of their willingness to engage in open and constructive debate on the Bill. I beg to move.
Lord Monks (Lab)
My Lords, I am pleased to support the amendment which has just been so ably moved by the noble Lord, Lord Kerslake, and I also support other amendments in this group.
As the Committee will see, Clauses 2 and 3 introduce arbitrary thresholds of turnout and majorities in relation to union strike ballots, particularly affecting certain sectors. Never mind, for the moment, that no other organisations are under the same statutory restrictions as far as their ballots are concerned. Never mind, for the moment, the glaring discrepancies between these requirements and the requirements that exist for ballots in political life; for example, we all know the embarrassment of the low turnout for police commissioner elections in particular, and there are one or two other examples. And perhaps never mind, for the moment, the unprecedented nature of these requirements on trade unions, certainly in western Europe. The fact is that these thresholds must be seen alongside the existing requirement that a union must use postal ballots. As the noble Lord, Lord Kerslake, has just explained, this has been the case since 1992.
Looking at different countries, only in Australia are there similarly tough thresholds on unions as far as strikes and other industrial action ballots are concerned. But in Australia, it is normal to use workplace ballots, with the postal ballot as the default position, and unions there can use online balloting too. This amendment seeks to develop that case for the United Kingdom.
In the impact assessment, which I am pleased we have now had a chance to look at—better late than never—the Government claim that the proposals are not about banning strikes and, rather disingenuously, claim that the thresholds are in fact an attempt to make the balance better. Other countries in western Europe are mentioned in the impact assessment, including Denmark and Germany, which do use thresholds in strike ballots. However, in both cases, those are agreed arrangements with the unions concerned that go back a number of years and, in the main, were done just after the end of the Second World War. But, again, there is no requirement on the method of balloting to be used in those countries. So, nowhere else in the advanced world is the requirement on how to ballot linked to questions of threshold, and nowhere else is there a requirement to have a mandatory postal ballot.
Those familiar with parliamentary elections—and there are many in this House—will know that easier rules on postal balloting were introduced to increase turnout. People apply for a postal vote from the local returning officer. In the union world, the ballot form is different; it is not solicited in the same way. It drops through the post with all the other stuff that we get and, too often, gets put to one side, forgotten about and ends up in the recycling bin. It has depressed turnout figures in most unions; it has certainly not increased them. The Government clearly do not trust—at the moment, anyway—alternative methods. In their wish to curtail the relatively few strikes that do take place in the UK today, the Government are using the combination of high thresholds plus postal ballots as a way of stamping out dissent and protest.
What redress is left to employees in these circumstances? Just imagine, for a moment, a large retailer with many casual workers, often low paid, a very high labour turnover and some harsh management practices: Sports Direct just happens to spring to my mind immediately. Under the proposed provisions in the Bill, how could workers do much collectively about the conditions in which they work? It would be virtually impossible, for example, to take lawful industrial action. I have to say that in some of these companies, it would not be easy to do that at all, even without postal ballots or any thresholds. However, it seems to me that an important artery of democracy is being blocked by making things more difficult. Not everybody is in a school or works for Transport for London—a tight group of workers with a common identity who are therefore relatively easy to organise.
The amendment in the names of the noble Lords, Lord Kerslake and Lord Oates, and myself suggests that Clauses 2 and 3 should not come into effect until an independent review has been carried out by the CAC. The Central Arbitration Committee is probably not very well known to most of the British population. It is a relatively small organisation, but it conducts ballots under the law on trade union applications for recognition. The turnouts in the ballots that it conducts are always high, and no evidence of fraud has been found since it started doing this work. It can decide on the most appropriate means of holding a recognition ballot—for example, with a dispersed workforce it could well use postal balloting, whereas with a concentrated workforce it would make sense to have a properly supervised ballot box. The key is proper supervision, with an independent scrutineer and a properly secure balloting method. The CAC has not yet used e-balloting, although as the noble Lord, Lord Kerslake, said, it has the ability to use it.
Lord Kerslake
My Lords, I am grateful to the Minister for her response, in particular her undertaking to reflect further on these issues. There were a large number of contributions—I counted a total of 17; I may have missed some—for which I am very grateful to the House. Recognising the length of the debate, and the fact that there are urgent debates to follow, I will not go through every one of those contributions. I ask noble Lords to bear with me. I shall highlight some of the key points.
There is absolute common agreement in the House about the need to maximise engagement. Nobody is arguing about this. There is absolute agreement in the House, including from the Minister, who spoke just a minute ago, about the principle of using digital means to carry out activities. There is no doubt about that point either. We are left with one question: can it be established that you can do this in a secure way? As a large number of Members said, there is ample evidence of very important transactions that are done securely. They do not get more important than how you manage your banking; perhaps with the exception of the noble Lord, Lord Cormack, a lot of us use that method. The crucial point I make is that we do very important and serious things through electronic means. I cannot believe that it is beyond the wit of the House, and, indeed, of the Government, to find ways to ballot for industrial action in the same way.
Lord King of Bridgwater
Would the noble Lord not agree that anybody who has an understanding of the situation in the internet world and its security knows that every responsible bank is extremely worried about being able to maintain security? There are current stories of major companies that have had huge losses of information about their customers. I say to the noble Lord that the ballot on the Mayor of London was a little time back. We need to ensure that we have a fresh look at this in the current climate of risks to security.
Lord Kerslake
The noble Lord is absolutely right that cybersecurity is critical. Indeed, I was going to come on to that. It is critical across every aspect of digital technology and use of digital systems. In fact, many security systems in this country are highly dependent on tackling cybersecurity issues. There is no doubt that we need to deal with it. I venture to suggest that, in comparison with those risks and issues, the risks associated with electronic balloting for potential strike action may not be quite as big.
The noble Lord, Lord Pannick, made a powerful argument about how this issue sits in the wider context of balance and proportionality as the Bill is taken forward. We are applying quite significant thresholds. Have we done everything possible to enable unions to achieve that turnout? Are we acting in a proportionate and balanced way? That is critical. In many ways, the amendment may well save the Government from themselves and a potential successful legal challenge in the future.
I will finish with two points. First, the whole purpose of my amendment is to actively and independently look at issues of security. I am 100% persuaded that we can have sufficiently secure electronic balloting, and, indeed, workplace balloting, which, as has been said, happens now through the CAC. Secondly, the purpose of my amendment is to look at this issue through an independent process. Let us not put it above the principle of thresholds, as the noble Lord, Lord Dobbs, said, but if we put these thresholds in place, we should reasonably and independently explore the question and report back to the House.
This is most definitely not a manoeuvre to delay the Bill. In fact, I have put a time limit of two months in which to carry out the work, which should be more than ample to do work of this nature. Therefore, this is not about saying that we have definitive answers—although I personally think we do—but that we should properly and independently test this issue.
My last point goes to the argument made by the right reverend Prelate the Bishop of Chester. Ultimately, this is about fairness. Are we acting in a fair way in the changes we are making, which affect a very important issue in this country: the right to strike? That should be our determination and, if we believe that that is the core of this issue, the amendment is entirely reasonable. I really hope the Minister will think about how we might do this. Given her very constructive commitment to think seriously about this issue, I will of course withdraw the amendment and hope to have further conversations on this issue.
Lord Balfe
Before the noble Lord sits down, we have of course discussed five different amendments. My amendment says that a trade union may only use electronic voting,
“subject to the agreement of the Certification Officer”,
which would obviously be if the system was secure. So I draw the noble Lord’s attention to the fact that the Minister has many different options to choose from, as well as his own very well-drafted, crafted and spoken to amendment. The principle of electronic balloting is at the heart of this debate.
Lord Kerslake
The noble Lord, Lord Balfe, makes a very powerful point. I entirely agree that the aim here is to be able to say, by the point at which we introduce these thresholds, that we have given the widest range of choices. That is where we are trying to get to. If there are alternative ways of doing it, I am very open to that conversation. That is why I am willing to withdraw the amendment at this point, and to continue that conversation. It will not be good enough simply to let the issue drift and return to it as and when appropriate. We need to sort it out now, as part of the Bill.