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

Lord Monks Excerpts

Monday 11th November 2013 Lords Chamber

Moved by

[Lord Monks]

154: Clause 38, page 45, line 25, at end insert—
“( ) to offer ACAS conciliation between complainant and respondent before making an enforcement order”

[Lord Monks (Lab)]

My Lords, Amendment 154 is designed to provide for ACAS to be able to intervene when there is a dispute about a register. ACAS has a very high reputation for intervening in difficult situations and finding its way through them. We think that there could be some difficult situations if the assurer gets going in a number of circumstances. With the agreement of the parties and the certification officer, it would be useful for ACAS to be deployed before an enforcement order is issued. I beg to move.

[Baroness Donaghy (Lab)]

I shall speak briefly to the amendment. As the Committee will know, I was chair of ACAS from 2000 to 2007. To that extent, I suppose I have an interest in attracting work to my former organisation. If the Minister is correct in saying that the Government are not looking for confrontation in Part 3 of the Bill—some of us still need convincing of that—they will be looking for ways of avoiding the ultimate sanctions that are contained in Part 3. I think this offers a way out of an impasse. It might help the parties, particularly if there are difficulties in agreeing factual statements, if ACAS were to be invited to intervene. The Minister will know that, if this is not specified, ACAS will not be able to intervene. There needs to be a statutory requirement before it can become involved. It is important that this is written into the Bill. I support my noble friend Lord Monks on this amendment.

[The Parliamentary Under-Secretary of State, Department for Business, Innovation and Skills (Viscount Younger of Leckie) (Con)]

My Lords, it is not entirely clear why this amendment is being proposed. I imagine that there could be concerns in relation to vexatious allegations or allegations by an employer seeking to undermine a trade union’s ability to take industrial action. In practice, where an inspector conducts an investigation, there is no complainant or respondent with respect to that investigation. It is not clear why ACAS conciliation between a union under investigation and a potential witness would ever be appropriate in the context of an investigation to establish whether a union was in breach of its duties under Section 24. Therefore, I hope that the noble Lord will feel able to withdraw his amendment.

[Lord Monks]

I am well beyond the hat-trick stage of getting disappointing replies this evening. I think that an opportunity is being missed here. ACAS could help to smooth the introduction of these measures, and I am sorry that the Government are not a bit more interested in this subject. However, I beg leave to withdraw the amendment.

Amendment 154 withdrawn.

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Moved by

[Lord Monks]

155: Clause 39, page 46, line 21, at end insert—
“( ) must specify to the unions the provisions with which he or she considers the trade union may have failed to comply and give preliminary written reasons for that view which are sufficient to enable the trade union to know the case it has to meet and to enable it to make representations to him or her;( ) must disclose to the union any inspector’s report under section 24ZI in sufficient time for it to address that report in any written representations”

[Lord Monks]

My Lords, Amendments 155 and 156 stress the need to give unions adequate opportunity to make representations before enforcement action is taken. It gives them the chance to see what is in an inspector’s report before the certification officer is called upon to declare that a union has failed to comply with its duties. In other words, they are given a chance to put things right before being arraigned before the registrar of trade unions, who is the certification officer. Providing a chance to put things right before things become public and perhaps more entrenched seems to us to be a matter of good procedure in this kind of case. I think it is a useful suggestion and I should like to hear what the Minister has to say about it. I beg to move.

[Lord Stevenson of Balmacara (Lab)]

My Lords, during the break I had a look back over the points that we have been making to the Government. A bit like my noble friend Lord Monks, I am slightly surprised that the Government have taken such an aggressive line towards what we are saying. If the Minister recalls my contribution to the debate on the group before this, I was saying—I thought in as conciliatory a manner as possible—that we were trying to offer a series of improvements to what we think is a bad Bill. However, not a single one of them was taken up.

In our opening two debates, I asked a total of, I think, 14 questions. I have not had answers to any of them and I am under pressure from my colleagues here to keep pushing the Minister to come back with at least some general responses if he cannot give detailed ones. However, I can hope—because I know that he is an honourable and decent person—that I will get a letter at a later date that perhaps covers them. I hope that that will be the case.

On the ACAS amendment, which was meant in the spirit of support—there was no particular difference of principle here—all we got was, “I can’t really understand why the Opposition would bother putting up this amendment”. When some of these amendments were put forward in the other place, we at least had a decent reply from the Minister. Although he did not accept all of them, he did accept one or two points, and at least there was a sense of dialogue and debate. I am very disappointed at the way that this session has gone today. I hope very much that, when he comes to reply, the Minister will make a considered response to the points raised by my noble friend.

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Finally, the union can appeal decisions of the certification officer to the Employment Appeal Tribunal. I am confident that the current provisions give unions plenty of opportunities to put forward a defence before any declaration is issued, and I hope that the noble Lord will withdraw his amendment.

[Lord Monks]

My Lords, that was a rather legalistic reply. The Government are taking a rigid approach to this. I am sure that the whole thing is a sledgehammer to crack a nut, completely disproportionate to any problems with union administration that may exist in the fertile imagination of noble Lords on the other Benches. Anyway, the Minister has told us straight that he is going to stick to the provisions of the Bill and that he does not find the amendment particularly to his liking. I beg leave to withdraw the amendment.

Amendment 155 withdrawn.

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Moved by

[Lord Monks]

156A: After Clause 39, insert the following new Clause—
“Part 3: Commencement
The provisions in this Part shall not come into force until the Secretary of State has placed in the Libraries of both houses a review of the burden of regulatory responsibility that this Part will place on trade unions, including any necessary rule changes and their timeframe.”

[Lord Monks]

My Lords, this is an important amendment on an important topic, on which other amendments have been tabled in the names of my noble friends Lord Whitty and Lord Lea. It is important that union administration processes are taken into account in introducing this legislation, and Amendment 156A suggests that the Act should not come into force until the Secretary of State has placed in the Libraries of both Houses a review of the burden of regulatory responsibility that Part 3 will place on unions, including the need for them to make rule changes and the timescale for doing that.

The purpose is to give unions adequate time to comply in a way that is cost effective, economical and practical from their point of view. It is very much in line with the Regulatory Policy Committee report that we discussed earlier at some length and which drew attention to the lack of reliable information on the increased burden imposed on unions. That was one of its major reasons for giving the Government the red card in its report and on the whole exercise.

It also highlights the fact that unions have these procedures for making changes in their constitution, and it will be necessary, as the Bill recognises, that unions will have to make some changes to the rules. In the union that I was familiar with, a rules revision conference was held every few years. Often the Government of the day were sensitive to the union timetables, and so on, particularly on a matter such as this. It hardly seems a matter of life and death, even to the aficionados on the other side, in terms of the importance that the Government attach to it. We know already that the BIS estimate of around £461,000 is an underestimate. It will cost unions a lot more than that. Before the Bill is enacted we need a better idea of the costs that will be incurred. We need an approach that is reflective of the union’s need to take steps to comply with the law properly and effectively. I mention again the need to keep costs down.

I am sympathetic to the amendments in the name of my noble friends. They seek to specify a time limit, which would be useful. Some unions have longer timescales for making changes. I mentioned one that did it every few years. I hope that we will get sympathetic and sensitive understanding, especially given the complete lack of information in the impact assessment, as pointed out by the Regulatory Reform Committee, on the Government’s figures and the regulatory burden being put on unions. They are shoving a load of red tape on to unions and it is important to give the unions at least a period of digestion that errs on the side of minimising a little bit of that red tape. I beg to move.

[Lord Lea of Crondall (Lab)]

My Lords, in the course of thinking about this last week I went to the Public Bill Office. I do not know whether I should mention the clerk’s name, but it was Simon Burton and he is right there. I wrote something down and asked whether we could put 1 January 2116. He said, “2116?”. I said, “Yes”, and he said, “Don’t you mean 2016?”. I said, “Oh, I probably do, but hang about a minute, why not make it 2116?”, but I chickened out.

Anyway, the more this discussion goes on today, the more obvious it is that we are juggling lots of timescales and deficiencies in the procedure so far, such as no pre-legislative scrutiny, no scrutiny by the Constitution Committee of the House of Lords, no discussion of post-legislative scrutiny, and so on. Yet, everybody knows, and the Minister has said it several times, that ostensibly it is because of the difficulties that unions have in getting their membership lists up to date. I wonder why that is not true of electoral rolls, but let us stay with what we are on. This will take some time, so what is the connection between that and commencement dates?

The other point that I want to bring into this discussion concerns the pause. The pause for Part 2 has been for a particular purpose, but the pause in Part 3 is simply a consequence of the pause on Part 2. I do not know why the Minister is looking puzzled, but there is de facto a pause before we have the next discussion at the same time as Report of the Bill. Am I not right? Yes, of course. That is how it is. So, between now and the new year all sorts of people, including the Cross-Benchers and so on, will be thinking about all sorts of ideas.

In the middle of this I happened to read, being an insomniac, a very interesting discussion in the Moses Room led by the noble Lord, Lord Norton of Louth, on the importance of commencement dates. Indeed, I noticed that my noble friend Lady Royall took part in that discussion. I was quite amazed that commencement dates are a key part of our constitution, but even Ministers sometimes do not know who takes the decision. Certainly as often as not there is no further parliamentary discussion or decision on them, yet I suppose that we could find, for the anoraks on these matters, some reference to the Joint Committee on Statutory Instruments and so on. Therefore, I think that we could bring into the mix the problems that have been mentioned for our consideration between now and the new year.

This thing is half-baked. One of the reasons it is half-baked is that it should be in the oven for at least an hour but has only been in for 20 minutes. That is one of the reasons it is half-baked. We should take this in the spirit that it is intended—namely, where should commencement dates come in the Bill? Obviously, we are not advocating that we pass legislation that is never implemented. That is, however, not as stupid a comment as one might think because apparently a huge amount of legislation is never implemented. Just read the report of the noble Lord, Lord Norton. He was the chairman of the commission on this very question. That might be nice, as I say, or implemented in 2116.

De facto, I thought somebody might notice that there is a general election coming up between now and 2016. All I would say about that is—and it cuts both ways—in 2016 and those sorts of periods, people will at least not be thinking all the time about how these matters may affect a general election. They are matters that have a serious footprint into the trade union movement, as we demonstrated this evening, including all the different timetables of changing union rules. The Minister may not have tried to deny that, but he did not appreciate that one cannot simply go to the next conference in Blackpool and say, “We’ll put a rules revision on the agenda”. There are rules for the procedures and timings of rules revision conferences.

Therefore, I think at the moment—there is no voting this evening—we would like to link this proposition with the one that my noble friend Lord Monks referred to. We are trying to relate this, with considerable difficulty, to the realities on the ground. If something in this field is to be done, it has got to be done within a timescale that allows for post-legislative scrutiny. I will ask the Minister a specific question about that. Where does post-legislative scrutiny now fit into his conception of where we will be going on this? I look forward to his comments.

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[Viscount Younger of Leckie]

It is indeed. The noble Lord, Lord Lea of Crondall, raised the issue of post-legislative scrutiny, which is a fair point to make. It is good practice to evaluate the effect of legislation once it has had time to have an impact. We would expect to do this in due course so I hope that is some reassurance to the noble Lord.

The noble Lords, Lord Monks and Lord Stevenson, raised the issue of a revised impact assessment. I have already touched on the impact assessment in my earlier speech but I emphasise that the impact assessment that has been published is based on the quality of evidence we received. We will be seeking to improve it but to do so will need more data than have so far been provided. We will be working on this and will present a revised impact assessment before the legislation is commenced, which is what Amendment 156A seeks.

The noble Lord, Lord Whitty, raised the issue of having an opportunity to see the draft secondary legislation. The Government have already said that there will be consultation on the order to set out the eligibility criteria for the assurer. We will continue to engage unions and others as we develop the detailed implementation of the provisions to support a smooth transition.

The noble Lord, Lord Whitty, returned again to the issue of whether the Bill was intended to regulate the way in which unions choose to pay political levies. He mentioned that I had mentioned it once, maybe twice, before. Whether it was once or twice, I now emphasise it a third time to be absolutely clear over our position. There is nothing in Part 3 that is intended to change how unions do this. The Government’s intention is to provide greater assurance about the accuracy of membership registers. There is no wider intention and regulation of union political funds is a different part of the 1992 Act from that amended here. We have offered, as I said earlier, to assist the leader of the Opposition with his planned reforms if he wishes. I cannot be any clearer on re-emphasising this point. I ask the noble Lords to withdraw, or not to move, their amendments.

[Lord Monks]

My Lords, during the Minister’s reply, which I have to concede was a bit more interesting than some of his others, there were one or two chinks of light. There was something of interest in the timetabling and lead dates, although they are well short of where unions need to be to do this in an economical and sensible way. There is still quite a lot of pressure for some unions in particular to get these things done. The view on our side, which has been consistently expressed, is that this is a remedy that is looking for a problem to solve. There is no requirement for it. As the impact assessment says, there is nil effect and nil impact. For a Bill that is so marginal to anything important, it is extremely disappointing to see a department that is committed to economic growth and stirring the British economy to a higher level of performance wasting time addressing a non-problem. We thought the suggestions from this side, about giving us plenty of time to make adjustments and explain it to people, deserved a better fate than the one that you have just given us.

I welcome the BIS talks with the TUC. I hope that the Minister will be in listening mode during those talks. I also welcome that some adjustments have already been made as a result of those talks, and what the Minister said about there being nothing in this Bill that will affect political funds.

I hope the noble Lord, Lord Tyler, is not too disappointed because I thought he had rather ambitious hopes for the Bill as the first step towards a new settlement on party funding. I do not think that it is; I do not think that it is that significant. Otherwise, these Benches and his Benches would be absolutely full.

As the Minister says, I am sure that we shall return to the issue about commencement dates at the next opportunity and I now withdraw the amendment.

Amendment 156A withdrawn.