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

Lord Stevenson of Balmacara Excerpts

Monday 11th November 2013 Lords Chamber

The Bill provides the certification officer with extensive new powers to access and retain the registers of members’ names and addresses, and several other documents that he may wish to get his hands on when he has reason to decide that he needs them. It is a fact of life—I have gone to factories in my coat when it is quite cold and spoken to employers and union members—that employees are frightened of letting their employer know that they are a trade union member. Even if there is not black-listing, it is quite scary when you feel that your company, your factory or your workplace is getting really bad, with random redundancies and wages being cut. You cannot articulate that as an individual, so you take the initiative to try to find a collective voice or some lady or man who will come to speak for you, because it is quite frightening to speak to your employer. People say, “I want to join the union, and I want the union to come, but don’t tell them I’m a member because I’m petrified of the consequences. When you’ve got enough members and you’ve got recognition, fine—but I don’t want it to be known that I’m a union member”. That is the reality in some workplaces. They are not all colossuses, striding around; a lot of it is about frightened people without a voice, and sometimes the trade union is their only prospect of getting a collective voice. I have had it said to me, and I have done it myself. You have to put their details on the central membership record, but you take action to make sure that their details are not circulated; you promise that you will not bandy around the details of their membership but will protect them. I worry that with third parties and whoever—and who knows how the provisions of the Bill could evolve, when we start getting into the granularity of challenging membership records—things might be done to vulnerable individuals that were never intended as a consequence of the Bill. We may start to undermine the freedom of association and the right to the collective voice of which, I hope, we are all so proud and which are such an essential part of an independent democracy.

[Lord Stevenson of Balmacara (Lab)]

My Lords, I start, as I did at Second Reading, by declaring my interest as a member of a union. I thank all noble Lords who have spoken in this debate. There have been some excellent speeches, which, taken together, have put the onus on the Government about the content, consultation, timing and purpose of the Bill in such a way as to leave one with the very strong impression that this is, in some sense, a very partisan measure.

If I were the Minister and had felt the strength of what was being said, I might want to crawl away and lick my wounds at this stage. The Minister does pick them. He has had this experience before, so perhaps he will learn from it.

We believe that Part 3 is unnecessary. It has been described as a confidentiality-breaching, red-tape-increasing solution to a problem that does not exist. So I invite the Minister to demonstrate to us that there is a serious public policy issue behind this proposal. When he responds, will he state as clearly as possible what he thinks the problem is, what this Bill will achieve that current legislation does not achieve and why the measures he is proposing will do more than simply increase regulatory burdens on trade unions? I hope he will do better than simply repeat what is in the BIS consultation which states:

“Trade union activity has the potential to affect the daily lives of members and non-members. The general public should be confident that voting papers and other communications are reaching union members so that they have the opportunity to participate, even if they choose not to exercise it. As a result, unions also have a responsibility to give public assurance that they are keeping up-to-date registers”.

It is motherhood and brown bread.

We agree with that, but as the Minister well knows, union membership is already regulated by the Trade Union and Labour Relations (Consolidation) Act. Section 24(1) puts a duty on unions to maintain an up-to-date register of members’ names and addresses so far as reasonably practicable. This legislation has stood the test of time since the days of Mrs Thatcher. In recent times, unions have always had a legal obligation to maintain accurate membership lists. As it happens, it is in their own interests to do so, and the certification officer already has sufficient powers to deal with inaccurate membership records, but has not needed to do so for many years. So the Minister should, in words of one syllable, explain precisely what is wrong with that legislation.

As has been said already, we are not aware of any calls having been made to the Government to extend this provision. BIS, the certification officer and ACAS have confirmed under freedom of information requests that they have received no representations for such a measure. Not even those employer and right-wing groups that consistently call for further legal restrictions on unions have ever campaigned for this change. Can the Minister explain precisely what public concern he is responding to with these proposals?

There are a number of organisations whose list of registered members is of real importance to the public; doctors, lawyers and chartered accountants come to mind. If someone wants to check whether a professional is on the list, the accuracy of that register is key to the assurance such a register provides, so one would expect that on the lines now being suggested for trade unions there must be external, independent checks and there must be certificates in place to provide comfort to patients or clients that the relevant registers are up to date. What do we find? The Library kindly carried out a survey for us of some bodies.

Chartered accountants must belong to a recognised body, such as the Institute of Chartered Accountants in England and Wales or other membership organisation which protects the quality and integrity of the accountancy profession. I am a qualified accountant with the ACCA. Our Library’s research has failed to locate any independent membership verification of its membership list. The ICAEW’s members elect members of their council but still have no independent assurer to check the list of voters, their addresses or whether the details held are accurate and complete.

The Bar Council represents barristers, but is not a trade union, although it represents the interests of the Bar on all matters relating to the profession: trade union, disciplinary et cetera. Although the Bar Council is the source of information about whether someone is a barrister, it told the Library that its membership list is not independently verified. Solicitors are represented by the Law Society, which aims to help, protect and promote them, but its list has no independent outside person to assure the public of its accuracy and completeness.

The strangest is doctors. Doctors are required by law to be registered with the GMC before they can undertake medical practice, and the GMC’s list includes details of their qualifications and their fitness to practise problems. It is the doctor’s responsibility to be on the register, and there is no independent assurer to certify the accuracy of that record. However, the trade union to which doctors belong—the BMA—will have to appoint such an assurer to confirm its records. Perhaps the Minister could explain why it is more important to have an externally verified list of BMA members than the far more significant list of medical practitioners held by the GMC.

As is now well known, this Bill was published as the summer Recess started and was rushed through the House of Commons—so rushed that the regulatory impact assessment for Part 3 was published only in September. It has only just been made available, during the Committee stage of the Bill in the other place. As we have heard, however, it has been considered by the Regulatory Policy Committee—an independent body largely composed of senior industrialists—and has been given a rare red rating by that body. The last one was in connection to “shares for rights” in a Bill that the noble Viscount might well recall, it having been debated rather vigorously in this House.

On the impact assessment, the Regulatory Policy Committee said:

“The IA is not fit for purpose. The assessment is not sufficiently robust to justify validation of the equivalent annual net cost to business figure … It is unclear how accurate and up-to-date a membership register will have to be for a union to be considered ‘compliant’ with the proposed new requirements; or what process of investigation would be undertaken by an independent qualified assurer, or how rigorous that process would be. Thus, the accuracy of a union’s register, the time costs of the assurance process, and the fee payable to the assurer, all remain highly uncertain”.

Therefore, it is not just saying that it does not believe what is there; it is saying that the way the Bill is constructed is so vague and imprecise that it is not possible to draw a conclusion as to whether the costs outweigh the benefits that have been provided. As we have heard, the benefits are rather low. As has already been mentioned, the committee notes that the very short consultation period and the failure to follow appropriate better-regulation framework processes put in place by the Government are both factors that may contribute to the lack of a sound evidence base. This is a truly shameful state of affairs.

My noble friend Lord Monks asked the Minister to explain why the department did not follow the better-regulation framework processes. On the points of substance, will more evidence be gathered? Will we get a more detailed assessment of all likely costs to the trade unions? Will there be more evidence gathered from consultation with stakeholders? All these points were made by the Regulatory Policy Committee. Will we get a figure for the estimated cost to unions of changing the rules before the Bill finishes its consideration in this House? We need this if we are to consider this measure in the round, so we really need a reworked impact study addressing the complaints made by the independent committee. Will we have this and, if so, when will it be ready?

Having said that, there is one section on the impact assessment that is positive. Again, I would like to ask the Minister what he reads into this. It says, on the question of the one-in, two-out rule:

“The measures contained in this impact assessment are in scope of the one-in, two-out rule. The Bill will impose a net annual direct cost on trade unions, which are classified as civil society organisations”.

That being so, could we please learn what the “two outs” are that will be given to the trade unions in return for the “one in” that has been proposed?

Ministers have stated, as they are required to do, that the Bill is compliant with the Human Rights Act, but the Minister will be aware that Liberty believes that the introduction of additional compliance and scrutiny measures on trade union registers of members may constitute a breach of Article 11. That article protects the right to freedom of association, including the right to form and join a trade union. As has been said, restrictions are permitted only if they pass a test of pressing social need and proportionality. Will he explain why he thinks that this additional burden of measures on trade unions does not breach the right in Article 11(2), in the light of its potentially intrusive nature into the private affairs of union members and unions’ internal affairs? Can the Minister set out the legitimate policy aims that pass the strict test expressed in that article?

Without an adequate explanation of what the Government are trying to achieve here, far better arguments about why the existing legislation is deficient and the information to judge whether the costs imposed justify the regulatory burden being introduced in the larger unions, it is hard to see why we should not proceed to oppose the clause stand part Motion, as we have proposed. As my noble friend Lady Drake said, the unions in Britain play a significant part in the modern economy. They should be cherished, not castigated. As my noble friend Lord Whitty said, if the Government had brought forward such a burdensome set of duties to any other section of civil society, there would be an outcry. There is indeed an outcry and we should listen.

--- Later in debate ---

[Lord Whitty]

My Lords, I do not want to prolong this but the noble Lord said that this Bill was about Parliament defining the internal constitution of an independent political party. There may be all sorts of things wrong with the constitutions of all the political parties represented in this House, and we all have views on that, but when the Government presented the Bill, that is not what they said it was about. We have now gone into huge new territory as a result of the intervention of the noble Lord, Lord Tyler, and we need the Minister to come clean. I hope that he will make it absolutely clear that the Government’s intention is not primarily to knacker a leading opposition party. If it is, it is a far more serious attack on democracy than even we supposed.

[Lord Stevenson of Balmacara]

That was interesting. What have we learnt? We have made two rather important steps forward down the path of trying to understand why we are here today and why the Bill is being considered. The first is the Minister’s, I think off-the-cuff, but rather interesting comment, that he resisted the idea that he had planted tanks on our lawn—presumably the trade union lawn—but that the wheels were on the lawn, even if the whole tank was not. I know about tanks, and they can fire very large and rather dangerous weapons; they do not have to be on your lawn to do damage but, if they are on your lawn, it shows real intent. I am afraid that that cat is now out of the bag, so we have that logged.

I thank the noble Lord, Lord Tyler, so much for being present for at least part of the debate, and for being able to enlighten us as to what exactly is going on in the corridors behind the party front that we call the coalition. As my noble friend Lord Whitty said, he has given us the answers to the questions that we have been asking the Minister all evening and to which we have not had responses. I asked 14 questions in my speech and got not a single direct answer to any of them. We now know that this is the set-up for the battle still to come on the question of party funding.

Well, well, well. Here we were thinking that we were talking about important issues such as rights, civil liberties, and so on, when the real debate was about trying to establish a hegemony in terms of party activity that would perpetuate the Conservatives and possibly the Liberal Democrats—I have my doubts about that—against the opposition party as it is presently constituted. Presumably, that gives credibility to the theory that I have heard advanced around the place, which is that this part of the Bill was originally considerably longer and dealt with the question of party funding in relation to the unions, but because of the demarche by the Leader of the Opposition. Mr Edward Miliband, it had to be changed considerably, and all we have left is a warming pan in the political bed that we are addressing. It keeps the issue on the table so that, when and if the parties opposite get their act together, they will move in on party funding in a way that, as we have heard from the noble Lord, Lord Tyler, is so crucial to the future of both his party and, presumably, the Conservatives. Okay, they can change the rules—but at least that is helpful to us in knowing how to address the Bill in more detail when we come back to it on Report.

The amendments tabled in my name and that of my noble friend Lord Monks were difficult for us to frame because, like my noble friends Lord Whitty and Lord Lea, we felt very strongly that what was proposed in Clause 37 was not appropriate and did not satisfy the test of being in response to significant public concern, which we put to the Minister in Clause 36, but which he failed to answer. We felt that it was appropriate in the spirit of this House to table amendments in an attempt to ameliorate some of the harm that would be done otherwise. Our hearts are with clause stand part on Clause 37, and we will consider very deeply over the pause whether to come back to it.

As my noble friend Lord Whitty said, nobody has ever heard of an assurer. It is not a term that appears in any dictionaries that I have consulted. We do not know what it is. It is obviously important that jobs are created in our economy. We are grateful to the Treasury for thinking that they should do this, and the fact that there will be 10, 15, 20 assurers is obviously a great blow in support of the economic policies that the party opposite are trying to put forward. Really, the job is not worth the candle. As my noble friend Lord Whitty said, it would be much better if we were discussing practical things that could address a particular public policy.

It may be that a better self-certification system could be an advantage; it may be, because we do not know what the problem is. That would at least give a frame to the debates we are having. It may be that additional powers for the certification officer would also be of use. These things are matters that we could discuss. Cloaking them, as we have had already in Clause 36 debates, in some spurious idea that there is some concern out there that would be remedied by having an initial arrangement, is simply not sufficient. The Minister and the Government more generally should think again about this whole area.

During the debate, we raised questions about whether the confidentiality of the material made available to the assurer would be sufficiently robust to satisfy the points raised by my noble friend in other parts of the debate about recruitment and retaining members. I am sure that the Minister accepts that, for the confidentiality of trade union registers, these are really important issues. For many employees, their membership, or lack of membership, of a trade union is an extremely private choice, and one which they desire to keep confidential for many legitimate reasons. Indeed, the strength and legitimacy of these concerns was recently underlined by HMRC’s decision to back down in a dispute with Equity about providing personal information relating to its members following a strong response by the union, supported by Liberty, calling in aid Article 11 of the ECHR protections. The knowledge that under the new powers, trade unions could be required to provide their membership register to a Government body for any “good reason” may act as a disincentive for workers to join unions, particularly in light of the current concern over union blacklisting.

As this test is highly subjective, there is the potential for the power to be subject to abuse. For example, the Government may decide they have a good reason beyond that of ensuring public confidence in accurate records—their present argument—for wanting to know whether particular individuals have joined unions, and under proposed wording will be legally entitled to inspect registers under the guise of checking whether the register has been properly updated to include the suspected new members. Can the Minister guarantee that this will not happen? It is evident that the stated aim of ensuring public confidence in the status of union registers is already adequately addressed by the current system, which gives members the power to challenge registers at any time and requires the appointment of independent scrutineers at the key points when ensuring accuracy of the registers is important. Introducing wide-ranging powers of investigation by Government bodies and third parties that do not owe any duty of confidentiality to trade unions, coupled with a second layer of external auditing, is surely an overly intrusive measure, which will have an unwarranted detrimental effect on the members’ trust in the confidentiality of the union registers. These measures clearly go beyond what is necessary and proportionate to achieve any legitimate aim behind the proposals, if indeed there is one at all, and may constitute a breach of Article 11 of the convention.

It should be remembered that the Government are introducing this series of measures at the same time as the full extent of the scandal of blacklisting in the construction industry is gradually coming to light. This is by no means the only industry in which members of a union may wish to keep their membership confidential for fear of being subject to discrimination. On another Bill, the Minister was forthright in his condemnation of blacklisting. Does he not recognise the possibility of double standards here? Will he comment on that?

[Viscount Younger of Leckie]

My Lords, I will now respond to the group of amendments tabled to Clause 37, focusing on the role of the independent assurer, their appointment and removal, and the assurance process. I will deal with the question that the clause stand part of the Bill at the same time.

The Bill will provide greater visible assurance of the maintenance of trade union membership registers to members, employers and the wider public. Clause 37 gives credibility to that assurance by requiring independent scrutiny. Increasingly, a number of unions have become large organisations, serving a membership that frequently covers a variety of employers and workplaces. With this comes administrative complexity, as well as increased public interest in a union’s scope of influence. The nature of union membership data means that they decay easily, as has been mentioned. It is reasonable to think that someone moving house might forget to notify their union, for example. This is recognised in the existing duty for a union to maintain an accurate membership register,

“so far as is reasonably practicable”.

--- Later in debate ---

[Viscount Younger of Leckie]

In answer to the noble Lord’s first question, I went some way forward in attempting to define what the role of the assurer will be. We have made it clear that the assurer is a new role and we should stick with that. The noble Lord’s point was that it should be commuted in with the role of an auditor, but they have distinctly different roles. The best thing is for me to write to the noble Lord to clarify the position of the assurer. I should re-emphasise that the union has a say in choosing the assurer from the approved list, which is originally approved by the Secretary of State. The role is currently being drafted and put together. We have some clear key powers and safeguards that are laid out as part of that role, but it is work in progress and I owe the noble Lord a letter to provide further clarification.

On his second question, I do not wish to go any further—and there is no need to go any further—other than the reply that I have given him. I hope that it has reassured not only the noble Lord but noble Lords opposite in terms of the position.

[Lord Stevenson of Balmacara]

We have had a very clear statement from the noble Lord, Lord Tyler, about what he thought this Bill was about. If the Minister cannot give a specific answer to the question of the noble Lord, Lord Whitty, will he turn to the noble Lord, Lord Tyler, and give him a straight rebuttal of what the noble Lord alleges?

[Viscount Younger of Leckie]

I intend to stick exactly to what I have said.

--- Later in debate ---

[Lord Lea of Crondall]

Perhaps I may mention in this connection the comment of the Royal College of Nursing—a union that is not normally associated with industrial difficulties. However, it states:

“Both the Government appointed Certification Officer and the Government approved Assurer would have powers to access unions’ membership records. In addition, the bill also proposes that any third party would be able to lodge a complaint about union membership—there is a potential for this to be abused during periods of industrial dispute. A complaint would be considered by investigators who would, in turn, also have access to union membership records. These proposals pose a serious risk to confidentiality of trade union membership and place undue bureaucratic and costly burdens on trade unions”.

I thought that it would be good to place on the record that comment from the Royal College of Nursing.

[Lord Stevenson of Balmacara]

My Lords, this group of amendments is different from the others we have considered this evening because it does not contain a clause stand part. The reason for that is because we think, certainly in relation to the ones in my name and that of my noble friend Lord Monks, that they are sensible safeguards and measures that we would recommend to the Government as being appropriate and proportionate in relation to the aims set out for the Bill. I gather from the remarks made by my noble friend Lord Whitty, and to a certain extent from those made by my noble friend Lord Lea that they shared this approach. So we are not, in this mode, trying to be as aggressive—as it could perhaps be considered—in relation to the Bill as we were in Clauses 36 and 37.

That does not remove from our side the feeling that these provisions are still aimed in the wrong direction, and that they lack a sensible underpinning in terms of public policy and have not been properly consulted on. However, in relation to the generality of the proposals, there is a case for the Government to move a little way towards us. I suggest that even if they cannot accept every one of the points made in this group, they might consider taking them back and reconsidering them. That would certainly give us a little more confidence that they were taking us seriously in these debates rather than simply retreating into the rather partisan approach that has been evident so far.

The underlying concerns that have been mentioned by noble Lords about blacklisting are important. It was perhaps unfortunate that my noble friend Lord Whitty referred to my noble friend Lord McAvoy as a solid citizen because that would in no sense reflect on his ability to do the work that he was no doubt being considered for before he was unfortunately blacklisted. I jest of course—I think. The point is well made. This is not something that is happening over there and far away. This is happening to real people in real time and it is affecting lives and blighting careers. Its cause is largely due to the circulation of lists, and therefore, by following back that logic, it is something that we are very concerned about. Everyone should be concerned about that and we should do everything in our power to make sure that datasets of the type that could cause solid citizens to be affected are protected in a way that allows them to be kept as close as possible to what is required and necessary so that they are not in any sense open to the risks mentioned during this debate.

We do not have any particular issues that make one point more than another, but it is important to recognise that for many years this country has been proud of its effective and well working relationships between unions and employers. We want to see them continue. As I have said, it is an important part of the contribution that can be made by industry and also by those working on the services side towards economic growth. While we object to the measure before us in general terms, we think it could be strengthened if it has to be turned into law, and these amendments are therefore recommended.