Important Public Services (Border Security) Regulations 2017

Debate between Lord Monks and Lord Kerslake

Tuesday 24th January 2017 Lords Chamber

[Lord Kerslake (CB)]

My Lords, I intend to keep my remarks short, not least because the noble Lord, Lord Foster, made many of the points that I would have made. It is fair to say that this was one of the most contested pieces of legislation that this House has seen. Indeed, during the debate, this Chamber was considerably fuller than it is now. Looking around the Room I feel a sense of nostalgia for the noble Lords who were here for that debate.

It is important to emphasise that the issue of the threshold was one of major concern, because, as the noble Lord, Lord Foster, said, it applied a test that applies to almost no other election. That is an important point. If we see other elections as giving authority to take actions, in many ways having as big a consequence for people’s lives as strike action does, we do not expect the same level of test as we do here. But—and this is the important point—that debate was had and this House acquiesced to a package of changes to the Bill at the time. While I expect no one agreed with absolutely all of what was done, it seemed in the end a fair package given the contested and strong issues. If there are noble Lords who feel strongly that it should go further, I cannot see them in the House this evening.

The point I particularly wanted to raise was that part of that package was a commitment to review the issue of electronic balloting. That was not a small point, because hand in hand with the introduction of the threshold had to be measures that would make the process of voting easier for members. It is in all our interests to see the maximum turnout. Electronic balloting alongside postal balloting was the intended approach. We comprehensively demonstrated during the debate in the House that there were no real impediments to the introduction of electronic balloting. Indeed, it was used by a wide range of organisations already.

I may have missed something, in which case I am happy to apologise on this point, but I have not seen a great deal of evidence of progress on this issue—in particular, of a proposal coming forward from the Government to say either that they have looked at this and it is not viable, or that they have looked at it and it is viable. I would welcome a response from the Minister on that point, because, if there has not been the necessary progress, the House is due an apology. It was an integral part of the settlement agreed at the time.

[Lord Monks (Lab)]

My Lords, the real purpose of the Act was revealed to me by a former Conservative employment Minister, when he simply said, “Bills against the trade union movement don’t cost anything and they don’t half cheer up Conservative associations in the country”. That is the double benefit derived from a trade union Act.

As we can see, the pressure is already on for another round of action—which was what, I guess, the Minister was referring to in his remarks. I will not repeat the speeches that we gave during the passage of the Bill and the situation we have arrived at now, except to say that the regulations on the double threshold are extraordinarily tough, unprecedented in their application compared to other organisations and very difficult for unions to carry through in a way that will not leave them open to legal challenge.

For example, a GCSE teacher is covered in a different way from a teacher of A-levels. In my experience, teachers often teach both. I am not arguing for widening it, I am saying that there will be many borderline areas where it will be most unclear, and very difficult for a union to specify exactly who is covered by the double threshold and who by the turnout one.

I want to emphasise the point of the noble Lord, Lord Kerslake, about electronic balloting. I do not see why this measure could not have been left until we have completed the exercise on electronic balloting—whether it will be permitted or not. That makes a considerable difference to turnout and the impact that this law will have. It could simplify things enormously.

Secondly, I would underline a point made by the noble Lord, Lord Foster, about the political fund adjustment time. Again, this year is a tough one. I am thinking not just about union conferences—everything that the noble Lord, Lord Foster, said in that respect is correct—but also about the check-off agreements with employers. The big unions have hundreds of such agreements. They will have to adjusted, and that is a major task. They will have to be renegotiated in many cases: it will not be done just by an administrative stroke of the pen. They will have to be talked about and explained to the members and to the employers.

These regulations, therefore, are tough, and I echo the request that has already been put to the Minister, to give unions rather longer to respond—an extra six months would be extremely useful.

Trade Union Bill

Debate between Lord Monks and Lord Kerslake

Monday 8th February 2016 Lords Chamber

[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.