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

Lord Stevenson of Balmacara Excerpts

Monday 11th November 2013 Lords Chamber

[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.

[Viscount Younger of Leckie]

Perhaps I may attempt to lower the temperature slightly. There was certainly no intention of being peremptory, particularly with the short response that I gave on the previous group of amendments. I can only say that, if it would be helpful, I would be more than happy to write to the noble Lord and indeed to the noble Lord, Lord Monks, with some further details on that reply, which I took as read as being rather short. There was absolutely no intention of dismissing it, if that was implicit in the noble Lord’s reply.

As for the questions that the noble Lord, Lord Stevenson, has raised during the debate today, which I much enjoyed, I have already pledged to write to him to answer any questions that he has raised. Indeed, he has raised quite a few, so I hope he will accept the fact that I write letters and like to get into the detail. The very least I can do is answer the questions clearly and fully, and also address some of the concerns of the noble Lord, Lord Monks. I hope that that is very clear to the House today.

--- Later in debate ---

[Lord Whitty (Lab)]

My Lords, the Government would be wise to accept at least some of the spirit of these amendments. The first of the amendments deals with the whole issue of getting a better grip on what the impact really is. We have had a pathetic impact assessment put before us—one that bears no relation to any costs that any of the trade unions, whatever their persuasion on other matters may be, would recognise. We have not managed to assess what the impact would be on the resources and costs of the certification officers. We have a pause now in which the Government could put that right so that the next time we come to debate the issue we will have more robust figures, perhaps some degree of consensus about what it means and at least a range of figures we could sensibly talk about. At the moment we have virtually none of that.

The heaviest comment on it has been the Regulatory Reform Committee’s view that all of this is unsupported in the normal way in which we approach new regulation. The Government have got to get out from under that at some point and they have time to do it. Therefore the requirement in the amendment of my noble friend Lord Monks that more information should be put in the Library before we return to this issue on Report would be sensible from everyone’s point of view, particularly that of the Government.

As to the commencement date, obviously the Government are reluctant to put in a later commencement date than they would like. On the other hand, put at its gentlest, we know that the Bill is a bit of a mess—and not only this part. There is serious criticism of the scope of Part 1 and very serious criticism, concern and widespread apprehension about Part 2. By being gung-ho and requiring that nearly all of the clauses within the Bill should come into effect immediately the Act is passed, the Government do not serve their cause well. They certainly do not serve well the cause of implementing any part of the Bill because they will need to take a large chunk of civic society with them, including in this respect the trade unions and in other respects a wide range of organisations.

It is therefore not sensible for the effect of 90% of the Bill to start on day one. The Government will come back and say that that is not really what it means because from day one they can draw up the secondary legislation, and so in that sense it is the secondary legislation that will have a commencement date. That is all very well but, given that there are controversial issues such as this in all three parts of the Bill and that we have not seen any draft secondary legislation—and will not see any by the time we reach Report, as I understand it—a judgment by ourselves cannot be made and, more importantly, cannot be made by those organisations that are affected by each of the three parts of the Bill. A later commencement date for the whole of the Bill, with proper consultation on the secondary legislation, would be a sensible move.

Of course, there is such a thing as a general election. I hesitate to return to an earlier discussion, provoked by the noble Lord, Lord Tyler—I nearly called him “my noble friend”—that revealed that there was at least some suspicion or understanding that this would affect political funding. However, if that is the case and it is an important motivation for the Bill—and if the Government refuse to go further than the rather Delphic statement that the Minister repeated at least twice, which got us no further down the line—we know that there is not going to be a deal between the parties on political funding this side of the election. However, whatever our backgrounds, we all recognise that there is a possibility at some point we will have to change the rules in relation to political funding generally. The only way we can do that is by consensus. We will not do it before an election but whoever wins the election might be in a position to do it afterwards. That is an important consideration. If, so close to an election, the Government appear to be taking pre-emptive action on this front, affecting one party only, the possibility of a multiparty agreement will become more remote after the election.

In a sense, that is a separate argument. I am trying to look at it in part from the Government’s point of view, as they seek to deliver this with a reasonable amount of support from civic society. In any case, they will need to think of a fairly long timescale for implementation. If they do not, they will be in trouble not only with the trade unions, but with a large chunk of civic society and those who expected this Government to deliver on lobbying in way that actually adds up to something. In that case, the Bill will be seen as a damp squib on the one hand and a provocation on the other. I do not think that this is in the Government’s interests.

I suggest that the Minister should take this back to his colleagues, talk to them and agree that we should have a somewhat later commencement date—probably for all three sections of the Bill but certainly for this one.

[Lord Stevenson of Balmacara]

My Lords, as has been made evident from the speeches that we have heard, this is about ensuring that, should the Bill progress and be brought into law, it will operate with a reasonable chance of success. As we have heard, it puts additional red tape on a number of bodies which are technically independent. They are part of civic society admittedly, but not those which are necessarily controlled by any one group. They are self-governing or self-operating, so it will take time for it to be absorbed.

There are new procedures and assurers—if that is what they are to be called, it is an ugly name—who will need to be nominated on a list to be promulgated. There have to be appointments made, new reporting processes brought in and inspections, and all sorts of procedures relate to that. We have a plethora of activity and burdens on trade unions that need to be bedded in. If the Government were thinking about the effectiveness and efficiency of the operations, it makes sense to give it time to bed in and get the best chance.

We have also heard from those who know—and perhaps they know a lot better than those who are advising Ministers—about the practical difficulties of trying to get changes into all these independent bodies in sufficient time and on an appropriate scale in order that the legislation can be made to work effectively. What does a bit of a delay cost us? We might return to that.

This is also about trying to do legislation properly. I made plain in my earlier remarks that the Minister’s letter-writing needs will prey heavily on his mind over the next week or two, because of all my questions. About seven of them were about the report from the Regulatory Policy Committee on the impact assessment. I will run over one or two of them, because they raise issues that are not susceptible to the timescale to which we are told the Bill is being progressed. In effect, what was called for was a new impact assessment. I asked the Minister whether we will have one, but he did not respond.

Will there be new figures? Will the RPC be able to look at and make comment on them? Will the figures do what the RPC requests of the Government and involve those stakeholders and others who were not properly consulted before? Will there be an opportunity for the Bill to be refined, to answer the question that the RPC asked about how accurate an updated membership register would have to be for a union to be considered compliant with the new recommendations? Unless that is made clear, it is very hard to assess or even guess whether the costs that will be placed on the trade unions are worth the additional assurances available to those who will in time wish to depend on that register.

All this is criticised to a great extent in the impact assessment report and, therefore, we assume a new report will need to be put in. The Minister said that part of the blame for this was because those carrying out the impact assessment did not get sufficient responses from the trade unions. That may be because trying to consult with a body in a four-week period starting at the end of July and finishing before the end of August is not likely to maximise the chances of getting a good response.

There may be other reasons, but it is more that there is a lack of understanding about how independent bodies such as trade unions operate and how to get the information that is available within them for compliance. It does not exactly fill one with confidence to read in the report from the RPC that the impact assessment provides figures in relation to small unions that seem to have been based on one respondent. The Government could do better than that. That will take time and compete with the other issues that we are talking about and, therefore, again plays to a suggestion in the amendment that there should be a delay in commencement until such time as the Secretary of State has placed in the Libraries a review of the burden of regulatory responsibility. That is just one proposal but others that have been discussed by my noble friends suggest a date that would allow sufficient time for the legislation to bed in. I recommend that proposal also because it would provide an alternative approach.

This point regarding commencement will come back, as my noble friend Lord Whitty mentioned. There are other commencement issues regarding Parts 1 and 2. Other amendments in the group technically relate to Part 4 and we will therefore have an opportunity to debate them again. I invite the Minister to give us a considered response, unless he feels that behind all this the “drop dead” date of May 2015 will suffice, and stating anything other than what he previously said would therefore merely be provocation.

[Viscount Younger of Leckie]

My Lords, Amendments 178, 179 and 180 would amend Clause 41 to delay Part 3, either in whole or in part, from coming into force. I have assumed that the noble Lords intend the amendments to be applied together to delay implementation to 1 January 2016 at the earliest.

Noble Lords are clearly anxious that trade unions should be given sufficient time to prepare. I entirely share this sentiment. I hope that, to this extent, I can offer a positive and emollient answer to the noble Lords, Lord Monks, Lord Lea of Crondall and Lord Whitty. I agree with the noble Lord, Lord Stevenson, that it makes sense to allow time for bedding down or bedding in—I am not sure which but we will go for both for the moment. Unions will be required to amend their rules, which will need agreement from their members. They will also have to identify an eligible assurer and contract with them. Again, agreeing those contractual arrangements will take time. I am sure that noble Lords opposite will agree with me on that.

Moreover, many unions will be part way through a reporting year if the provisions were to come into effect immediately. This would mean deviating from standard legislative practice whereby provisions are not applied retrospectively. That is why the measures in Part 3 will not be applied retrospectively. Unions will be required to submit their certificate for the first full reporting year after the changes become law. Given that unions can have different reporting years, the point at which the changes take effect on each individual union will vary. However, all unions will have up to five months from the end of their reporting year to submit their certificate to the certification officer.

Noble Lords may wish to note that should the provisions in Part 3 come into effect in March 2014, a union whose reporting year ends on 31 March would not need to submit a report for the year ending 31 March 2015 until the end of August 2015. A union that reports every calendar year would have even more time to prepare; it would have to submit its report for the year ending 31 December 2015 by the end of May 2016. Furthermore, even if Parliament granted Royal Assent by March 2014, it is likely that the provisions in Part 3 may come into effect later. The Minister for Employment and Consumer Affairs in the other place has given an assurance to consult on the order for the eligibility of the assurer, which will take time.

I turn to Amendment 156A. A copy of the impact assessment prepared by BIS was placed in the Libraries of both Houses on 11 September. This was mentioned earlier by the noble Lord, Lord Monks. It drew on responses to a targeted consultation in the summer when we sought evidence of the impact. We engaged specifically with trade unions on this point at a meeting arranged by the TUC with some of its affiliates and BIS officials. We are continuing to work with the Regulatory Policy Committee to consider how to improve the evidence base. Should unions or anyone else have any further information, we should be pleased to receive it. We will place a revised copy of the impact assessment in the Libraries before the legislation is commenced.

[Lord Stevenson of Balmacara]

Can the noble Lord repeat that last phrase? Before which date will a copy of the impact assessment be placed in the Libraries?

[Viscount Younger of Leckie]

Before legislation is commenced.

[Lord Stevenson of Balmacara]

I am being particularly dense and time is moving on but we are in Committee. Are we saying that this impact assessment may not be available to us before we conclude discussion of this part—in other words, that the Bill may have passed through its proceedings in the Lords before the impact assessment is placed in the Libraries? The noble Lord said it was the commencement date.