Economic Activity of Public Bodies (Overseas Matters) Bill

Debate between Lord Oates and Baroness Neville-Rolfe

2nd reading
Tuesday 20th February 2024 Lords Chamber

[Baroness Neville-Rolfe (Con)]

That is my sense, but I will obviously check where we are. I would also make it clear that things such as conference centres and so on are obviously outside the remit. I will come back to the noble Lord on the exact definition, if I may, and we can perhaps discuss it in Committee in any event.

I will now address concerns that this Bill represents a change in the UK’s foreign policy. The noble Baroness, Lady Kennedy of The Shaws, and others, will be pleased to know that the Government have been clear throughout the Bill’s passage that nothing in this Bill changes the UK’s position on Israeli settlements. They are illegal under international law, present an obstacle to peace and threaten the viability of a two-state solution. The Government continue to urge Israel to halt settlement expansion immediately.

I reassure the House that the Government’s assessment is that the Bill distinguishes between Israel and the territories it has occupied since 1967. It is therefore compliant with UN Security Council Resolution 2334. The Government believe very strongly in the importance of complying with international obligations under the UN Charter.

[Lord Oates (LD)]

Could the Minister tell us how the Bill distinguishes this, because the clause applies to them all equally? Could she set that out?

Nuclear Energy (Financing) Bill

Debate between Lord Oates and Baroness Neville-Rolfe

Committee stage
Tuesday 8th March 2022 Grand Committee

[Lord Oates (LD)]

My Lords, Amendment 33 and the subsequent amendments in this group seek to ensure that the Government cannot refuse to publish information that is in the public interest without compelling grounds. As it is currently written, Clause 13(2)(a) allows the Secretary of State to withhold any relevant material which he or she believes

“would … prejudice the commercial interests of any person”.

This is an enormously wide loophole which makes no attempt to qualify the degree of prejudice to the commercial interests of that person or to balance that with the public interest in the disclosure of such information.

Amendment 33 would establish a primary duty on the Secretary of State to publish all relevant material. Amendment 34 provides that material may be excluded only in exceptional circumstances. Amendment 35 would insert the word “seriously” so that the test is whether disclosure would seriously prejudice commercial interests, not the much weaker test currently in the Bill. Amendment 36 would require that, should the Secretary of State exclude material on the grounds of serious prejudice to commercial interests, he or she must make

“a statement to Parliament that the prejudice to commercial interests”

set out in subsection (2)(a)

“is of such seriousness that it outweighs the”

overwhelming

“public interest in … the publication of material relevant to any”

costs that may be incurred by the taxpayer

“arising from any provision of this Act … the determination of the regulated asset base charge that may be levied on consumers under the powers in this Act, and … the cost to consumers of electricity produced by the project.”

It is critical for proper public scrutiny that Ministers cannot decline to provide information behind claims of prejudice to commercial interests. These are projects being funded by consumers, and they have the right to know all relevant material except in the most exceptional of circumstances. We already know how reluctant government and its agencies are to provide information on costs which are overwhelmingly in the public interest. One such example is the apparent unwillingness of the Nuclear Decommissioning Authority and GDF to provide information on the breakdown of costs for cleaning up Sellafield and how the costs of GDF are accounted for in the NDA’s figure for overall nuclear liabilities.

For example, the Nuclear Decommissioning Authority and the Radioactive Waste Management company, which is a subsidiary of the NDA, have been seemingly unwilling to provide a breakdown of how the estimated £96 billion clean-up costs at Sellafield were arrived at and what they account for. Likewise, there is no explanation of whether the nuclear liabilities costs include the additional figures of £20 billion to £51 billion for GDF that was announced in the NDA’s annual report. I noticed, when we debated the GDF issues, that the Minister did not respond to my question about how that is accounted for within the overall NDA liabilities. We already have a reluctance to share information that is overwhelmingly in the public interest.

The record of transparency in these matters is very poor. This amendment would prevent it getting even worse. It is particularly incumbent on the Government to respond and provide assurance to the public, given that they are going to have these costs imposed on their bills for new nuclear power generation, and share all relevant information unless exceptional circumstances prevent that being possible. I beg to move.

[Baroness Neville-Rolfe (Con)]

My Lords, I should have started by apologising for not being able to speak at Second Reading. I have a problem in that I am following two or three Bills at present and there have been some unfortunate clashes. I want to speak on this amendment because I am well known as a supporter of proper and transparent costings. To that extent, I was pleased to see the amendment of the noble Lord, Lord Oates.

However, I thought Clause 13 was quite narrow. It seemed to be concerned with matters that are commercially sensitive or need to be excluded on national security grounds. As a former businessperson, that seemed quite reasonable to me. Obviously, it would be good to know that we will have a proper understanding of costs, particularly to the consumer, which might occur as proposals are developed. I associate myself with the wish to understand the costings, although I am not convinced this amendment is appropriate or necessary.

Trade Union Bill

Debate between Lord Oates and Baroness Neville-Rolfe

Thursday 25th February 2016 Lords Chamber

[Lord Oates]

Has the noble Baroness consulted the Certification Officer in this respect? The evidence that he gave to the Select Committee does not suggest that his view is in line with hers. He was certainly concerned about judicial review if he did not investigate third-party complaints properly.

[Baroness Neville-Rolfe]

As I have said, we are planning ongoing discussions with the Certification Officer, and it will be sensible to revisit that point. But this is the way that we see it in the light of practice in other regulatory areas. I add, if I have not said it already, that enforcement decisions will remain subject to appeal. I suppose that that was the point the noble Lord was making—we have to be careful with systems of appeal.

The Certification Officer reports on the complaints he or she considers in an annual report, which is submitted to Parliament. His or her activity and decisions can therefore be the subject of public scrutiny.

The setting up of a separate body to oversee the Certification Officer’s work would, I believe, create additional costs and increase legislative complexity. It could slow down action, allow genuine complaints to go on for longer without being addressed, which is the last thing we want, and go too far in the regulatory direction—noble Lords will be glad to hear me say that.

We will be discussing the levy on a later amendment, but—to respond briefly to the noble Baroness, Lady Donaghy—there is no intention to penalise anyone. The system simply has to recover the costs of its constituent expenses. The Bill provides scope for regulations to provide for different amounts to be charged. This will be deployed if the proportion of functions provided by the Certification Officer to certain organisations is different. That is proportionate and fair, and in line with Treasury guidance. Whether the regulations will specify that different amounts are to be charged in these circumstances will be subject to the outcome of consultation, which seems the right approach. I believe that setting up an entirely separate body to oversee the Certification Officer’s work would be unnecessary.

I have managed to get through my speech without another Fisherman’s Friend, and I ask the noble Lord to withdraw the amendment.

--- Later in debate ---

[Baroness Neville-Rolfe]

My Lords, I thank all noble Lords who have been engaged in this very long debate today. On the final point that the noble Lord made, clearly, this Bill brings together a number of provisions that were promised in our manifesto, on which we were elected last year. There are important changes here but, as I said at Second Reading, and as I have reiterated over these four days in Committee, we are listening. We may be able to make some changes—this is very much a listening part of the process.

This clause provides a regulation-making power to enable the Certification Officer to charge a levy to recover the cost of his or her expenses. It is only fair that the cost of the regulatory functions provided by the Certification Officer fall on those who are regulated rather than on the taxpayer. We are, of course, applying this reform to employers’ associations as well as trade unions.

[Lord Oates]

Could the Minister explain why it is right in the case of the trade unions and not in the case of the Electoral Commission and political parties?

[Baroness Neville-Rolfe]

My Lords, government is not always logical, and while some regulators receive public funding many do not. In fact, increasingly few regulatory areas are paid for by government. We do not think it appropriate for the costs to fall on the taxpayer. We are going to set out our proposals. The clause requires consultation with relevant organisations, such as the TUC and ACAS, before making regulations. We will ensure that there is consultation, so we can achieve a levy that is proportionate and appropriate. I would envisage a consultation document, which can go to those concerned; that is always the sort of approach I favour in the areas where I have responsibility. An impact assessment will be published, as has been said, and the normal process is to publish that with the draft regulations, which of course will come before this House in due course, setting out the arrangements for the levy. We should also ensure that ACAS and the trade unions have a reasonable period of time in which to consider the detailed proposals, particularly in the light of the discussion taking place today.

This legislation is about trade union reform, and I do not think that the point about political parties, which I know is made with great vehemence by the noble Lord, Lord Oates, is a matter for this legislation.

It is important—and perhaps I can explain technically—that the Bill does not prescribe the amount. The Certification Officer needs to decide each year how much he or she needs to be charging to cover the cost of performing the functions for that year, adhering to the framework that is prescribed in regulations made under the Bill. It is common for legislation that introduces a levy or fees to require that the detail be set either in regulations or by the relevant regulator. This is standard practice and recognises that it is simply not possible to be too prescriptive in the primary legislation.

It is right that we do not attempt to limit the flexibility the Bill currently provides to apply one or more of these parameters until there has been proper statutory consultation. Let me give an example. We recognise that trade unions can vary greatly in size. Smaller unions and employer associations may require less of the Certification Officer’s time and resources, as my noble friend Lord Balfe said. We want the scope to be able to consider whether those who use more of the officer’s time should bear more of the cost, thereby reducing the amount of levy payable by smaller organisations. My noble friend Lord Balfe asked me to look at a point about political funds, and we can certainly consider that as part of the consultation. We will consider very carefully during the statutory consultation whether the amount of levy payable should be proportionate to the trade union or employer association’s income. It should take into account affordability for the smallest unions.

Amendments 118 to 121 seek to change that magic word, which the noble Lord, Lord Mendelsohn, knows so well, “may” to “must”, so that all the potential criteria in the Bill would have to be applied in setting the framework for the levy—I am afraid my sore throat is getting going again. That limits the flexibility to ensure that the power operates effectively, which is particularly important as we have a statutory duty first to consult.

On Amendment 121A, I appreciate noble Lords’ desire for there to be some control over the amount, but there are safeguards that act to control the amount of investigation that the Certification Officer could undertake. Most importantly, he will be able to investigate only where there is good reason to do so. Third parties have no statutory right to complain. The changes allow the Certification Officer to investigate in respect of information he receives that may be from a third party.

The officer has had the power to launch investigations into a union’s financial affairs for many years, and it has not been suggested that it has been used disproportionately. He or she will also be required to report annually on the amount levied and how it was determined. These reports are laid before both Houses. By way of further safeguards: the amount of the levy will be limited to cost recovery; unions and employer associations will be consulted before the framework for the levy is determined; and regulations to enable the Certification Officer to charge the levy will be subject to the affirmative procedure, allowing a full debate in Parliament, which I much look forward to. In these circumstances, I ask the noble Baroness to withdraw her amendment.

Trade Union Bill

Debate between Lord Oates and Baroness Neville-Rolfe

Tuesday 23rd February 2016 Lords Chamber

[Lord Oates]

Pursuant to that point, can the Minister tell us, specifically with regard to local authorities, why she believes that it is for the Government in Whitehall to interfere in the decisions made by democratically elected local authorities? As the noble Lord, Lord King, pointed out, if we have transparency, that will presumably bring pressure to bear. It is for local authorities, which are, in my experience, much more responsive than central government, to react to it. On what basis would this extraordinary power be used against a local authority?

[Baroness Neville-Rolfe]

I agree with the noble Lord that the changes we propose promote transparency and that the power of transparency should lead to good decisions, be it at national or local organisational level. That is common ground. We believe that a back-up power, even if it is never used—I remember debating this very issue in respect of other Bills before the House with those on the Benches opposite—is necessary in this area. It is a power of last resort. It applies to local authorities, where there may be an example of the sort that my noble friend Lord King talked about, in the same way as in other areas.

The situation is similar in the NHS, and I was so glad to hear about the NHS from the noble Lord, Lord MacKenzie of Culkein. It is a public sector employer, so obviously the taxpayer funds facility time. It is the largest employer group in the public sector in the UK. I gather that it is now number five in the world: it has sunk beneath the US and the Chinese military, Walmart and McDonald’s. Obviously, it is a very large and important organisation. Like the Royal College of Nursing, we recognise the value of facility time in the NHS and do not for a moment suggest that it is simply a drain on the public purse. We do not seek to ban it, but where inefficiencies are revealed in part of the NHS, for example, the reserve power should be there in the same way as for a school or a local council.

Trade Union Bill

Debate between Lord Oates and Baroness Neville-Rolfe

Wednesday 10th February 2016 Lords Chamber

[Baroness Neville-Rolfe]

I think that the noble Lord makes the argument for the Bill: trying to bring in a greater degree of clarity. I have given an example, which I think is a good one. Perhaps I might proceed.

The approach proposed in Amendment 27, which puzzled the noble Lord, Lord Pannick, requires agreement with the employer and could result in too much time and effort being spent on trying to agree the wording on the voting paper, instead of trying to resolve the dispute. I think that this is common ground. Trade unions will generally want to maximise the possibility of achieving the proposed thresholds and to have clarity and certainty about who is entitled to vote, which is the subject of Amendments 29 and 30. I reassure noble Lords that the law already protects trade unions against challenge over insignificant breaches of the balloting rules.

For example, many of the provisions in the Trade Union and Labour Relations (Consolidation) Act 1992 on balloting are subject to a “reasonableness” requirement. A union cannot be held to account for trifling errors when it conducts a ballot. Sections 226A and 234A require that the lists and figures supplied in the ballot and strike notices must be,

“as accurate as is reasonably practicable in the light of the information in the possession of the union at the time when it complies”.

Section 227 confers entitlement to vote,

“to all the members … who it is reasonable at the time of the ballot for the union to believe will be induced”,

to strike.

In addition, Section 232B provides that a union still complies with the requirements on balloting, even if it has made some error in the process, if,

“the failure is accidental and on a scale which is unlikely to affect the result”.

There is also the case of RMT v Serco, which established the margin of error on which trade unions can rely, thereby adding clarity and certainty around the statutory reasonableness requirement. All of this means that the obligations are not intended to be unduly onerous for unions.

Amendments 29 and 30 in the name of the noble Lord, Lord Stoneham, go further by allowing the union to import a “reasonable belief” into what is a trade dispute, so removing the current objective test to determine whether a matter constitutes a trade dispute. This would allow the issue to be opened up to uncertainty, according to what the union believed.

Amendment 31 addresses concerns about unions complying with the requirements to ballot those who are entitled to vote. I draw noble Lords’ attention to the fact that, in future, unions will have more certainty that those who are entitled to vote receive a postal ballot paper. This is because the previous Government introduced a requirement for unions to submit membership audit certificates. This enables unions to demonstrate that they are complying with their duty to keep membership records accurate and up-to-date.

Amendment 32 is duplicative. Section 231 of the 1992 Act already states:

“As soon as is reasonably practicable after the holding of the ballot, the trade union shall take such steps as are reasonably necessary to ensure that all persons entitled to vote”,

are told the result of the ballot. Members and employers will therefore know the number of votes cast and the numbers of individuals answering yes and no. It would not be fair to leave them to work out whether the thresholds were met, especially as the union will have calculated the result in order to know whether it has secured a mandate.

On Clause 6, I agree that it is not sensible under this amendment to go into too much detail on the Certification Officer, since we shall come to that on day 4. But this clause is important because timely provision of good quality information is a key component of ensuring effective regulation and it gives confidence to those affected by disputes. The need to provide such confidence is why annual returns—

[Lord Oates]

With regard to Clause 6, can the Minister tell us more about the regulatory impact? Under the coalition Government we introduced a rule of one regulation in, one out, and later we made that one in, two out. Which two regulations will be removed from trade unions as a result of this clause?

[Baroness Neville-Rolfe]

I shall look at what the noble Lord has said. The way one in, two out works is that where a new burden is brought in, equivalent burdens in pounds million are reduced. Obviously we produced an impact assessment for this and we shall be ensuring that when regulations are totted up, double the resulting amount is deregulated elsewhere. Under the system, one Bill is not linked with another but the totals are totted up. The noble Lord makes a good point about the importance of deregulation—and impact assessments are important for the same reason.

I have pretty well finished on this point, but the noble Lord, Lord Collins, asked about the secondary legislation that the Government would be making in relation to these clauses. There is no power to make secondary legislation in respect of Clauses 4 to 8. The provisions are set out in the Bill, which is why it was right to take the trouble to spend a little time setting out what was intended.

We have had a constructive discussion. There is a little further work in terms of scrutiny on this particular section. I am grateful for the points that were made, particularly on the issue of reasonably detailed indication. I should like to reflect further and in the mean time I ask the noble Lord to withdraw the amendment.

Trade Union Bill

Debate between Lord Oates and Baroness Neville-Rolfe

Monday 8th February 2016 Lords Chamber

[Baroness Neville-Rolfe]

I still do not really understand the point. I shall come on to give some examples that may be helpful in explaining the thinking. This part of the Bill is quite straightforward because, as several people have told us, it implements a particular wording in the manifesto. I am trying to explain the background to that.

I cannot accept the argument of the noble Lord, Lord Wallace of Saltaire, although it is very good to have him involved in this debate since we worked together in the coalition. There is no parallel between our recent parliamentary elections or the matters mentioned by the noble Lord, Lord Oates, such as the EU referendum, and the proposed thresholds. In addition to the excellent points made by my noble friends Lord King and Lord Balfe, it is just not a fair comparison. It is right that strong support be required for strike action ballots, because strikes can affect large numbers of the public who do not get a say in the ballot and are dissociated from the relevant trade dispute. In contrast, the public are able to participate in elections and have a democratic say in the outcome. As my noble friend Lord King said, they do not face a binary choice and are choosing between a range of candidates. It follows that the successful candidate may have a smaller share of the overall vote.

I also realise that noble Lords are concerned that the treatment of abstentions, which I think is what the noble Lord, Lord Oates, was getting at, would make the thresholds harder to meet. Our objective is to ensure that strikes can only ever be the result of a clear, positive decision by union members, because the action can go on to cause widespread disruption for the public. Union members are free to abstain from voting, but this is not a positive vote. It is only fair that it does not count towards the threshold.

Recent events show that the threshold can be achieved when union members feel strongly about the issues that are relevant. For example, last year, RMT members were balloted on the night tube, resulting in a turnout of 53% and support of 48%. That means that 91% of voting members supported industrial action, surpassing the thresholds and putting beyond doubt the legitimacy of the ballot mandate.

[Lord Oates]

Can the Minister address a bit further the issue of the perverse impacts of an abstention being stronger than a no vote? In 2014, I think, the Royal College of Midwives balloted for action for the first time in its history. I believe that 82% voted in favour of action and 8% against. However, the turnout was only 49%. Under this Bill, any industrial action taken by the RCM would therefore be illegal. Conversely, if thousands of people had voted against the strike, it would have been legal because they would have met the turnout threshold. That does not make any sense at all. Can the Minister please address that perverse and absurd impact?

[Baroness Neville-Rolfe]

The noble Lord has answered his own question. Our reforms ensure that strike action does not take place on low or unrepresentative turnouts. That is why we have two different thresholds.

[Lord Oates]

Does the Minister seriously think that it would be a sensible situation for the Government to get into if, on a ballot of 82% of people voting in favour, that industrial action became unlawful? Does she think that would be good for industrial relations in this country? Would it help overall relations in this country?

[Baroness Neville-Rolfe]

My Lords, it is always possible to talk about individual examples. In a minute, I will explain some other examples in relation to the amendments that have been tabled. Asking that 50% of eligible members take part in a ballot regarding action which is going to be hugely disruptive to people in all walks of life seems to me to be fair and democratic.

The threshold does not ban strike action. I think that that is accepted. It may stop some strikes—I think I have to accept that—but only those which have not been able to secure a sufficiently strong mandate. It is about restoring a level of democratic accountability to industrial action and it will rebalance the interests of all working people, both union members exercising their right to strike and non-striking members who want to go to work and carry on their normal lives.

We have before us a number of amendments to lower the 40% threshold, and to reduce the requirement for a simple majority of yes votes. Reducing the thresholds would fail to achieve our objective. It would mean that the thresholds have no practical effect, and would not ensure that strike action could only go ahead as the result of a clear, positive decision by union members.

Let me illustrate the point. If the alternative threshold of 25% proposed in Amendment 9 were applied, then only 250 in a ballot of 1,000 need to vote yes in ballots for important public services. This adds nothing to Clause 2, which requires a minimum turnout of 50%, and a simple majority of those who vote to support strike action.

Lowering the threshold even further to 20%, as suggested by Amendment 8, would again make the important public services threshold meaningless. Finally, Amendment 2 would replace the requirement to achieve a simple majority in all ballots with a requirement that only 35% of those voting need to support strike action. If this applies to a ballot of 1,000 where 600 have cast a vote, then only 210 union members would need to vote yes.

I do not believe that members of the public would feel that this restores a level of democratic legitimacy to industrial action ballots. They would gain no comfort in knowing that they cannot get to work or get their children to school because less than a quarter of union members have supported this outcome.

--- Later in debate ---

[Baroness Neville-Rolfe]

I think we all feel that the plight and the needs of the disabled and elderly are important, but I was trying to explain the logic on this occasion. The fact that people in ticket offices are helping disabled and vulnerable people is actually a big positive.

There was some discussion about why London buses but not rural buses are included. During the recent strike of 2015, TfL achieved a partial service, but this resulted in 7.5 million fewer journeys. Workers on low incomes rely disproportionately on the bus service in London; around 40% of people using buses are on concessionary fares and some 50% of bus passengers have an annual household income below £20,000. In contrast, there is limited evidence of the impact of strike action on local bus services outside London and on the sorts of users who rely on these services.

Finally, in the Border Force we are addressing the significant risks to public safety in the event of disruption to border controls. We have focused on services in respect of the entry and exit of people and goods, as these are central to the carrying out of checks and to preventing illicit commodities, such as unlicensed drugs and munitions, entering the country.

The noble Lord, Lord Collins, asked about progress on nuclear decommissioning and when our findings will be announced. The sector, as he knows, is a complex, heavy-industry sector with interdependencies between the workforces within and between sites. The Government are working to better understand these interdependencies and the implications of forthcoming business changes, and to support workforce reform plans, before bringing forward regulations to apply the threshold in this sector. Any regulations will be subject to the affirmative procedure.

[Lord Oates]

The Minister said that the reason the rules were not being applied to private schools was because there was no evidence of widespread disruption in such schools. Is there evidence of such disruption in the nuclear decommissioning industry? If not, why is it being included?

[Baroness Neville-Rolfe]

I think the arrangements on nuclear decommissioning are still under consideration. I can certainly come back to the noble Lord on the question of past disruption. It is clearly an area where it does seem important that strikes should not be entered into lightly. As I have said, there will be regulations, they will be subject to the affirmative procedure and this is on the list with good reason. The noble Lord will understand that we are looking very carefully at the arrangements and we have not come to a final view. I am sorry that on the question of timing I cannot give a firm answer, but I can say that we will be bringing an affirmative resolution forward.

[Baroness Neville-Rolfe]

I am very sorry to disappoint the noble Lord but there is no evidence of strike action in those institutions having a major impact or, I think, of strike action at all. I am seeking to explain the difficult decisions that we have taken and set out in our consultation paper for the benefit of the House this evening. Perhaps I may continue, as it is getting late.

I believe members of the public would agree that strikes in the crucial services that I have outlined should take place only when there is a reasonable level of support. Restrictions on Article 11 of the European Convention on Human Rights are permitted where they are justified by a legitimate aim and are proportionate. The courts have made it clear that they will respect the margin of appreciation accorded to each national Government to decide on industrial relations policy. I hope I have assured noble Lords that we have thought carefully about where the threshold should apply, and that the specified services are justified.

“Essential services” of course means something very different. They are referred to by some of the reports of the ILO supervisory bodies in respect of services where it may be legitimate in certain situations to limit or prohibit strike action. Amendments 5, 10, 12 and 13 would wrongly align the 40% threshold with the ILO’s interpretation of “essential services”. The threshold is about ensuring that strikes can go ahead if they have a strong democratic mandate; it does not prohibit strikes. The Government have therefore deliberately chosen the term “important public services” to describe the services covered by the 40% threshold.

[Lord Oates]

I am sorry to intervene again but the Minister is simply wrong in this matter. As she mentioned, the ILO labour guidelines as set out in Chapter V define essential services. They talk about not just the prohibition on strikes but the limiting of strikes. It is simply not possible to argue that a 40% threshold is not a limit on the right to strike. The Minister may say that it is a legitimate limit but it is definitely a limit on the right to strike.

[Baroness Neville-Rolfe]

I am afraid that we will have to disagree on that point.