Trade Union Bill

Lord Pannick Excerpts

Wednesday 10th February 2016 Lords Chamber

[Baroness Burt of Solihull (LD)]

I am grateful. My Lords, I do not want to detain the House because there is a lot to get through, but I want to make a very brief general point on Clauses 4 and 5. I am sure that every noble Lord would agree that we want legislation that will work. Our concern is that it should not tie either side up in legal knots on the information that they have to include on the ballot paper, or on the way trade unions communicate the result of the ballot.

Our concern is that the specificity of the requirements may lead to some kind of legal challenge by the employer or others, as my noble friend Lord Oates said. Surely we should have in legislation what any reasonable trade union member would expect to be told and what a reasonable trade union would expect to tell its members. That is why my Amendments 29 to 31 would enable the concept of “reasonable belief” to enter the equation, instead of specific legal questions, the contravention of which might result in a challenge. We also support Labour’s Amendment 32, which would inject that tone of reasonableness into the whole process of reporting the result of a ballot to union members.

[Lord Pannick (CB)]

My Lords, the noble Baroness, Lady Burt, just said that the legislation should contain what a reasonable trade unionist would expect to see on the ballot paper. For my part, I am having difficulty understanding the criticisms that have been made of Clause 4. There is some substance to them, but the clause is not “provocative and narrow-minded”, as the noble Lord, Lord Dykes, suggested. Surely, if one is to have a ballot that will be of vital legal significance in identifying whether the union and its members will be immune from legal action, it is perfectly reasonable to provide that the voting paper must give those who are voting basic information about what they are voting for.

Three items are mentioned in Clause 4. First, the voting paper must include an indication,

“of the matter or matters in issue in the trade dispute to which the proposed industrial action relates”.

That seems to me perfectly reasonable. The criticism may be justified in the words “reasonably detailed”. I understand the criticism of those words because there is a danger that they may lead to legal difficulties. If those words are removed, what is the objection to the person voting being told expressly and clearly the matters in dispute that he or she is being asked to vote on?

Secondly, where the voting paper,

“contains a question about taking part in industrial action short of a strike, the type or types of industrial action must be specified”.

What is wrong with that? It is a perfectly reasonable basic requirement. Thirdly,

“the voting paper must indicate the period or periods within which the industrial action or … each type of industrial action is expected to take place”.

Again, the reasonable trade unionist who is being asked to vote surely needs to know the length of time for which the industrial action is going to take place. Concerns have been expressed that these provisions may lead the trade union to put in, as was said, the kitchen sink. I should have thought that any trade union that did that would be very badly advised indeed, because it would be likely to confuse the members and far less likely to satisfy the statutory thresholds.

I am particularly puzzled by Amendment 27, which would provide that these new provisions,

“do not apply to any ballot where there is an agreement between the employer and trade union”.

Surely that leaves out the interests of the employee. There may well be an agreement between the employer and trade union, but it may not work to the benefit of individual employees. Therefore, I think there is some force in some of the criticism, particularly of the language in new subsection (2B)—“reasonably detailed” —but the criticisms are very substantially overblown.

[Lord Collins of Highbury]

May I ask the noble Lord about that “reasonably detailed”? My noble friend referred to the kitchen sink, but a pay claim may have several items within it, perhaps as many as 20, some more important to some groups within a firm than to others. There is a balance to be struck. The trade union balances that in negotiations and often has to choose, but of course the trade union is representative of those employees; it is not an outside body. At the end of the day, it is those employees who have the vote.

My problem with “reasonably detailed” is what you leave in and what you leave out. When I was a trade union official and we faced the possibility of a legal case—the possibility that we would be challenged—the tendency was to say, “Let’s put in the kitchen sink to make sure that we do not get it wrong”.

[Lord Pannick]

That is precisely why I expressed my understanding and support for the suggestion that the words “reasonably detailed” are unnecessary and may well be counterproductive. I see the force of that criticism, but only that criticism. Let me add that the noble Lord, Lord Lea, was concerned that this would require the trade union to put in its demands; it would not. What it requires is that the voting paper must indicate the matter or matters at issue. If we take out “reasonably detailed”, I cannot see the objection to a ballot paper indicating—not setting out in detail, but indicating—the matter or matters in dispute. That seems perfectly reasonable.

[Lord Monks (Lab)]

My Lords, I remind the House what unions are already required to do. They must ask members, on the ballot paper, about the type of industrial action that they are to take, whether it is a strike, an overtime ban or whatever. That has to be specified on the paper at the moment. The ballot paper must also indicate that there may be a breach of their employment contract. In my experience, all ballot papers have a statement of what the dispute is about, what people are voting about. They do not just say, “Will you go on strike?” out of the blue. In the postal ballot there is a statement saying what the dispute is about. My question to the Minister is: why do we need this? What is the problem that she is trying to solve?

I know what the effect will be. My learned friends—I exclude the noble Lord, Lord Pannick, from that description at the moment—will be poring over every ballot paper to see if it ticks all the boxes that the Government are trying to introduce. There will be an industrial dispute of some kind and disputes about the ballot paper. Members will say, “I don’t like that”, or employers will. I am not sure if it is a kitchen sink, Pandora’s box, or what the metaphor is, but it is a totally unnecessary bit of red tape.