Lord Kerslake
Main Page: Lord Kerslake (Crossbench - Life peer)
The Parliamentary Under-Secretary of State, Department for Business, Innovation and Skills and Department for Culture, Media and Sport (Baroness Neville-Rolfe) (Con)
I thank noble Lords for these amendments, which allow me to try to clarify on which public sector employers the regulations could impose publication requirements by virtue of Clause 12. As I mentioned, the purpose of the government amendment we agreed earlier was to provide the clarification the amendments seek. The government amendments I outlined I think go further than the concerns reflected in these opposition amendments. They also respond to the concerns voiced in the other place regarding the importance of public authorities knowing whether they will be required to publish information. I had hoped that sending a letter would help, but I am not sure it has, so let me try to respond. I say in advance that I will look at the issue again in the light of the comments that have been made this evening and the point that the noble Lord, Lord Tyler, made about delegated powers.
The first point is that since the debate in the other place the facility time regulations will now apply only to public sector employers with 50 or more employees to make sure that any burden is not placed on small employers. That will include smaller heritage institutions. In fact, this will reduce the number of employers who will be affected from the estimate which we set out in the impact assessment for this clause. Whereas some categories of public sector employer have a set definition, such as government departments, which are listed clearly on GOV.UK, there are public sector employers for which there is no such readily available definition or list.
The noble Baroness, Lady Hayter, asked who will be included in the list of public-sector employers. When determining which bodies will be required to publish information, regard was given to those bodies, as I think she said, classified by the Office for National Statistics as public sector bodies within the national accounts. We ran into the ONS, of course, when we debated the Enterprise Bill in relation to the Green Investment Bank.
We propose to include within the regulations those bodies that are funded wholly or partially from public funds, that provide functions or services of a public nature, that have more than 49 employees, as I have said, and that have at least one trade union official. I agree that,
“funded wholly or partially from public funds”,
probably needs to be the subject of my review.
An example is the definition of “public authority”, which I understand has a commonly understood meaning, but where the precise boundaries are is not clear. There are employers whose functions are of a public nature, and which are publicly funded, that may not be considered to be a public authority for other purposes. In that respect I cannot agree with the proposed use of the term in Amendment 81, as it would not capture the appropriate range of public-sector employees or provide the clarity that we need.
Amendment 82 expresses the concern that regulations would be applied to, for example, private companies receiving a small amount of public funding and, in turn, the reserve power to cap facility time in Clause 13 could then be applied to those organisations. That is not and never has been our intention, as my letter explained.
The noble Baroness, Lady Hayter, queried the position of academies. Academies are established in different ways from other publicly funded schools, but they are still publicly funded so it is right that they are accountable for how the money is spent.
Lord Kerslake (CB)
I would like to raise a question that is relevant to this debate. In doing so, I declare my interest as chair of Peabody. Peabody is a housing association that the Minister will know was classified, along with other housing associations, as a public body. The Government have rightly recognised that that was inappropriate and wrong, and are taking steps to deregulate for housing associations in order to take them away from being classified as public bodies.
I am unclear where that leaves this regulation. Would we see them as “in”, and therefore regarded for the purposes of this Bill as public bodies? In another Bill that is being taken through at the same time, we are trying very hard to get them out of public-body status.
Baroness Neville-Rolfe
I thank the noble Lord for his comments. As part of my checking up on this, I will look at that point, but my recollection is that, as he says, we are trying to get housing associations out of being public bodies, so they should not be covered for the reasons that I have already stated.
Lord Kerslake
“Review: cost of facility time
(1) The Secretary of State must conduct a review of the cost of facility time to public sector employers.
(2) The review shall include but not be limited to—
(a) recording and publishing time taken for facilities provided by union representatives;(b) the amount of money used for facility time, including paid time away from work;(c) the amount of hours union representatives spend carrying out representative work outside of their working hours;(d) the percentage of money spent on facility time taken up with different trade union activities;(e) whether the facility time provided is sufficient for union representatives to perform their functions;(f) the benefits which may accrue to the taxpayer and wider public from supporting the work of trade union representatives in the public sector;(g) a comprehensive cost-benefit analysis of the role of union representatives in the public sector;(h) the costs to a public sector employer of monitoring and publishing data on facility time; and(i) analysis and comparisons of employment tribunal cases, dismissal rates, voluntary exit rates and workplace related injuries within unionised and non-unionised workplaces.”
Lord Kerslake
I will say a few very brief words; I apologise for detaining the House. I tabled this amendment because I feel that we are conducting the debate about the Bill in a fact-free and certainly analysis-free zone. It felt to me that before action is taken we should have a proper analysis, not just of the costs but the benefits of trade union facilities, if nothing else to properly inform decisions that might be taken under delegated powers. It is very hard to see how government can make those decisions without this proper analysis of costs, benefits and their relationship. That is why I have suggested what I hope is a reasonable amendment, that a piece of work be conducted by the Government on this issue. I beg to move.
Lord Harris of Haringey (Lab)
My Lords, this is a helpful and useful amendment. It would be even more helpful had the noble Lord, Lord Kerslake, suggested that Clause 13—and possibly Clause 12 as well—could not come into force until such time as this review had been completed. The whole issue about having proper information and a proper background to what we are talking about here is clearly critical. The noble Lord, Lord King, who has just rejoined us, and the noble Lord, Lord Deben, spoke movingly about the importance of facility time, both as regards health and safety but more generally as regards good industrial relations. The implication from their speeches was that it was fine to have transparency on those issues but, by implication, it would be wrong to try to impose a limit if an agreement had been reached locally.
The information proposed in the amendment, which would probably be of the nature of academic research, would provide your Lordships with a proper background against which to consider these matters. Obviously it might take longer to compile than between now and Report, or indeed between now and Third Reading, but if these two clauses were removed from the Bill, the Government could bring them back in a year’s time having had the benefit of this research.
Baroness Neville-Rolfe
The noble Lord makes a fair point. As I have said, we would consider all relevant factors before using the reserve powers, and our impact assessment addresses some of those. If you are looking to use a reserve power, you obviously look at both sides of the argument.
I have not had time to do much about this amendment and I am not promising a concession but I would be very happy to meet the noble Lord and other interested noble Lords to discuss further the concerns around the amendment. In the mean time, I ask the noble Lord to withdraw the amendment.
Lord Kerslake
I apologise for the lateness in tabling this amendment and therefore for the short amount of time that the Minister has had to consider it. I would be very happy to take up her offer of a meeting to discuss it.
There is indeed a cost attached to the amendment but, for me, it is a cost of good government: when decisions are made on issues of this importance, the information, the facts, the analysis and the benefits should be available. In effect we are going to be taking decisions with only a partial picture of the impact, and what is proposed in the amendment would be a way of properly securing a full picture.
Baroness Neville-Rolfe
I would just add that a lot of the provisions in the Bill reflect clear manifesto commitments. We have sought to make an assessment, although it is not perfect in every respect. I am obviously very happy to debate this matter further—that is what Committee stage is always about—but I think that some of the provisions that we have put forward have merit. You cannot always do every bit of cost-benefit analysis, although everybody in the Committee knows that I am probably keener on that than any other Minister in the Government.
Lord Beecham (Lab)
My Lords, I will speak to Amendment 90A in my name and that of my noble friend Lord Harris, and to the amendment moved by my noble friend Lady Hayter. I will not reiterate anything in relation to Amendment 90A that I have already referred to in the previous amendments to which I spoke about the position of local authorities, the GLA and the NHS, except to say this. Why are the Government seeking powers to explicitly control one area of local authority expenditure—and by definition a very small percentage, whatever view one takes of it—out of all the functions of local government? What is it that has so concerned the Government that they are taking this quite exceptional course? I cannot see any evidence of such a serious issue. When one thinks of other areas of public policy where things occasionally go wrong, in local government or, indeed, in central government or the health service, where is the equivalent penal exercise that this provision seeks to impose?
Having said that, I revert to the provisions of Clause 13 itself, and I entirely endorse what my noble friend said about the clause. It strikes me as extraordinary that the Government should seek to intervene in this way. The Explanatory Notes, for example, refer to the fact that:
“The reserve powers may be exercised so as to limit the paid time off taken by … trade union representatives … to a percentage of the representatives’ working time. For example, if a public sector employer employs a number of trade union representatives who spend 100% of their working time on facility time, the cap may limit the time spent by such trade union representatives to 50% of the working time”.
What criteria would the Government apply in those circumstances? Would it be related to the number of employees involved and the number of trade union representatives? Suppose there is only one trade union representative in a particular place? I referred to the fact that Newcastle schools employed 1.6 people, but it may be one full-time representative. Will the Government say in that situation that only 50% would be permitted for that one person? Or will they say that 50% of the total can be found, but that means that no individual can spend 100% of his time? Two people could spend 50% of their time, or will that not be permitted?
What are the Government so concerned about in this particular area of public policy that they feel they have to take the power to prescribe in such detail as opposed to almost anything else either in the employment field of local government or the policy field? An extraordinary amount of attention is being paid to what, while it is certainly not an unimportant service, is one that still involves few people and a very small amount of money. That is what feeds the suspicion of some of us that the Government are bent on doing more than just ensuring an economical approach to the matter; there is a different agenda here to which Members of the Committee have referred many times today.
I hope the noble Baroness can give us a better clarification of the objectives here and a better reason for interfering in the rights of bodies which, I repeat, are accountable anyway. They are accountable to their electorates and are overseen by audit committees, and very often the local media will be keen to investigate any alleged difficulties. Why is it that Whitehall assumes that it should be prescriptive about the activities of hundreds of local authorities which have as legitimate an electoral mandate, if not more, than those that seek to oppose these restrictions?
Lord Kerslake
My Lords, I shall speak in support of Amendment 90A. If Clause 12 was about transparency, for which I have a great deal of sympathy, Clause 13 is essentially about compulsion—top-down “Whitehall knows best” micro-management. That is what it adds up to. If transparency has the desired effect, which the Government argue it will have, it is difficult to conceive of why there is a need for Clause 13. If this was seen as such an unacceptable expenditure in Sheffield, Doncaster or Brighton, the electorates would be able to make their decisions accordingly.
Let us take first the example we have just heard about from the noble Lord, Lord Beecham. There are arguments in favour of full-time trade union officials and arguments in favour of part-time ones. I have worked in different organisations with different models. What I would never presume to know is which one is right for any particular organisation, and I cannot conceive of circumstances in which the Government would know the right model. The second point I would like to make is that the requirements in relation to facility time would not vary just between organisation and organisation; they will vary in time as well. If a local authority is going through a major restructuring, it is perfectly reasonable—I have done this—to agree to extra time for trade unions in order to enable them to play their part fully in that change. If a cap is introduced, flexibility in the process is taken away.
It is not clear whether Clause 13 will apply to individual public bodies, individual local authorities or groups of local authorities. It seems to allow for all possibilities, so it would be interesting to hear from the Minister which she thinks it would be. But if we are talking about groups of local authorities, you will almost certainly get it wrong in either direction. If the cap is set high then people will not unreasonably take it as being the marker that the Government think is appropriate. If the cap is set too low, you will undermine the effectiveness of negotiations and the proper running of affairs in a local authority. All of this adds up in my mind to an example of centrist government at its very worst and I think that it should be dropped from the Bill. At the very least, local authorities should be given the flexibility to make this decision for themselves. If we believe that they are capable of leading economic development, running social care and being responsible for developing new housing supply, we must surely think that they are capable of deciding what the right level of trade union facilities is for them.
Lord Harris of Haringey
My Lords, we have already spent some time during the course of today’s Committee looking at the value of facility time and I do not intend to rehearse any of those arguments. However, when we were talking about the so-called transparency clause, the Minister told us that this is about a reserve power which she assumed or hoped would never be needed. So the question is this: why are we writing into this Bill now something for which there is so far a complete lack of an evidence base and a complete lack of clarity as regards its extent or how it would be applied? We have no information on how discerning it is. Will the Minister be sitting in her office, deciding whether the time-off arrangements for facility time in the Newcastle parks department should be this number of employees for this number of hours, as opposed to those working on social care in Newcastle, or those who might be doing similar functions in the London Borough of Haringey? How exactly is this supposed to be done? If it is not the Minister, in whom we have absolute faith, how can her officials make those discernment judgments between the different local authorities or organisations concerned?
Lord Kerslake
If we are going to give powers to a Minister for every inconceivable or almost inconceivable circumstance that might just possibly happen, we will give a huge amount of power to Ministers in the future.
Lord King of Bridgwater
I am so sorry, could the noble Lord repeat that comment?
Lord Kerslake
The noble Lord’s suggestion is that we should keep this clause in because it is very unlikely that it will ever need to be used, but not impossible. If that is the principle on which we put things into Bills, we will have some very big Bills in the future. Surely if we were in that situation, it would be open to the Government, as has already been said, to come forward with new legislation.