Lord Stoneham of Droxford
Main Page: Lord Stoneham of Droxford (Liberal Democrat - Life peer)Trade Union Bill
Lord Stoneham of Droxford Excerpts(8 years, 9 months ago)
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Lord Brooke of Alverthorpe (Lab)
My Lords, I too am grateful to my noble friends Lady Prosser, Lord Young of Norwood Green and Lord Mendelsohn, who have put their names to this amendment. I spoke at some length at Second Reading and I will not repeat that today, as much of what I wish to say has already been said. However, at Second Reading I talked about not just trade unions but the millions of workers who are as yet not members of a union. A series of analyses indicates that many of them lead unhappy lives at work. They do not make the contribution at work that they would like to, while the benefit of what they could add to companies’ quality and output is not taken into account. I said that we needed to think in a more positive frame of mind about how we can engage people in unions, and those who are as yet not in unions, to better our economic performance and well-being in this country.
At the end of that speech, I pleaded with the Minister to go back and look at the information and consultative council regulations introduced back in 2005 by Tony Blair’s Government. At the end of Second Reading, she had a lot of people to respond to and she did not address that issue—in fairness to her, it was probably because she saw that she needed to speak on other topics. When she responded to me she spoke on something else—check-off, which we were dealing with earlier in the day. But like my colleagues I hope that I can urge her or her Whip, who may be looking at the subject with a fresh pair of eyes, to take this part of the debate away and look carefully at what we have had to say. It is about progress and making a better life for employers and employees.
Following my noble friend Lady Donaghy, I have had a look at some recent documents issued by ACAS. It says:
“Information and consultation are the basic building blocks of every effective organisation. These concepts are as crucial to the relationship between the individual workers and their line manager as they are to”,
any other parties. It continues:
“Whatever the size or type of your organisation people need to talk to each other. They need to … exchange views and ideas … issue and receive instructions … discuss problems … consider developments”.
ACAS goes on to list a range of topics that are worthy of joint consultation between employees and their managers, including organisational performance, management performance and decision-making, employees’ performance and commitment, levels of trust, job satisfaction and work/life balance. The list goes on and on.
In many workplaces, unions are there but such discussions are not taking place in the way that they should. There are even more workplaces around the country where the voiceless have no means whereby they can engage properly with their managers to the overall improvement of the operation of those businesses and companies. That is to the detriment of not only the individuals in and owners of businesses but the company at large. My noble friend Lady Prosser has been extraordinarily agile in finding a way to bring an amendment to a Bill whose primary focus is on what I would see as negatives relating to trade unions. However, this amendment gives the Government a chance to put a positive there, as my colleagues have been pleading, and this time around I hope that we will get a positive response to our points.
Lord Stoneham of Droxford (LD)
My Lords, I too hope that this session provides a little light relief for the Minister, who has had quite a hard time through various sessions of the Bill. It has been a bit like a series of one-sided OK Corrals. Over lunch, I thought I might ask the Minister whether she has any genes from Stonewall Jackson, that great Confederate general. The other metaphorical point I would make is that he ended up being shot by his own side—accidentally. I hope the Government at least allow the Minister to make the concessions in the Bill which will be her salvation.
Amendment 97A is welcome in providing a wider debate on where we are going and I would like to make a number of points. Employment engagement is very important to improving the country’s competitive position, and to improving services in the public sector. As someone who has been in industry, I certainly feel that we have far too much dependence on adversarial systems and processes—I sense this in our politics as well—when engagement and working together on problems normally provides much better solutions.
I am certainly one of those who welcomes unions and sees their important role in society and industry but, sadly, the reality is that although the unions remain strong in the public sector they have become weak in the private sector. However we may regret that, we have to make the point that although unions are important there has also to be a diversity of systems that can work well. We see that in companies such as Marks & Spencer and John Lewis, and many foreign-owned companies where processes have been developed not necessarily strictly through recognised trade unions. This is very important in the public sector, where we in this country will no longer have a great and dominant manufacturing sector—although we might like to aspire to that—but will be much more dependent on services. That requires the motivation of employees and will be especially important in the public sector; it is certainly important in the private sector. That is why an adversarial system is no longer totally relevant to improving industrial relations.
I welcome the spirit of this amendment, the thinking behind it and the opportunity to have a general debate, however briefly, on this important subject.
Lord Mendelsohn (Lab)
I congratulate and thank my noble friend Lady Prosser for introducing this amendment and will set out why it is particularly important. It was a sheer pleasure in the previous debate to listen to the contribution of the noble Lord, Lord Balfe, and to the good sense that came from all parts of the Chamber. I hope that the Government are very much in listening mode and can perhaps hear a case for change. I will set out why the Bill merits some sort of change.
An interesting feature of the coalition Government was that every year, we would read in the papers and in blogs that Conservative Ministers would present this very Bill to Liberal Democrat Ministers. Each year, they would say, “Together, we could do in the Labour Party, which would undoubtedly be to our benefit”. Each year, to their considerable credit, the Liberal Democrats would block the Bill. I am sure that some noble Lords present today were witnesses to this annual event. It was no surprise that the Government, given the opportunity, chose to use a huge legislative sledgehammer to target—and in some ways to torture and weaken—their perceived enemies or to make life a little difficult.
This is unfortunate, not just for the well-being of those who are perceived to be the enemies but because it highlights that the Bill has yet to pass a strong public interest test. During our debates, we looked at the “will the sky fall in?” test. It probably will not, but we have certainly not met the “unattractive consequences” test. We have had a good debate about the impact on the regions and on devolution, and whether or not this will weaken the union; I do not think it has met the test that it will not. We also had a debate about what the point of this is, and looked at whether it passes the test of minimising the harm it might cause.
However, the Bill does need to pass the “making a positive difference” test—not just to trade union members but to the public and the national interest. This is what this amendment is about: the role and work of trade unions in a modern society. As a businessman, I would say that this is also about the massive opportunity we have to use workforces and trade unions for better purposes. The Bill has a stunning lack of meaningful objectives, such as targets, goals or definable and provable outcomes. We have seen repeatedly that there is no evidence to establish that there is a problem to justify the solutions. There is no cost-benefit analysis and no meaningful consideration of the consequences of its measures. It lays regulation on obligation on cost on restriction on complication on Whitehall centralisation. It really is time for a bit of light.
The amendment also passes a very important legislative test, which is that it tempers the Bill with proportionality, purpose, principle and practicality. I strongly believe that government Front-Benchers in this House have clean fingerprints on the design of this Bill. They are respected in this House and do credit to a tradition in their political party and to our country’s political culture and traditions—the debate we had earlier attests to that. I have been very encouraged by the debates during Committee and the strong consensus for changes to the Bill in so many areas, but I fear that the dull hand of the other House will compress the capacity of our House to ameliorate the Bill and that the power of the arguments made so ably by so many will not receive the proper response. I hope Members there are listening not just to what we say about the measures they have introduced but to this very welcome addition.
In that capacity, I am very pleased to see the noble Baroness, Lady Finn, in her place. She of course plays a very important role as a special adviser with a particular responsibility supporting the Minister of State for Skills in the Department for Business, Innovation and Skills on trade union reform—a kind of facility time for the Conservative Party. It is very important for the message to be conveyed to the Minister and to those who have held the debates in the other House that there is an opportunity here to do something which restores a bit of balance and addresses the great tragedy of the Bill, which is that it is not about reform for a great purpose.
Lord Stoneham of Droxford (LD)
My Lords, I am reluctant to detain the Committee longer than is necessary, but I would like to complement the remarks of my colleague, my noble friend Lord Oates, and will therefore contain my remarks on subsequent amendments.
We need to get to the root of the issue about why this reform, particularly this clause, is necessary. In evidence, as we have heard, the Certification Officer said that there was no evidence of pressure for change. The impact assessment contains some clever drafting. It says:
“At present there is scope to broaden the powers and sanctions available to the Certification Officer”.
But there is no real mention of what the need is and why it is so essential. It says that there is a need to do this to “ensure greater union compliance” and that the Certification Officer should have “more powerful sanctions” and extended powers to investigate. Why is that necessary?
I have also read the Certification Officer’s report. It was 10 years since I read the last one, so I read it twice: once to understand it, and then again to analyse the complaints made to the Certification Officer. And what I found was quite remarkable—this is where it differs from the financial sector. The sector has a turnover of £1 billion and 7 million members, which is not unsubstantial, yet what did we see in the Certification Officer’s report last year? We saw 57 complaints, 47 of which were on union rules and were made by 19 applicants. This is a mere handful of complaints.
I also analysed the costs. I am surprised that a Conservative Government do not respect an organisation that, since 2007-08, has reduced its expenditure—now at £560,000—by 16.5%. Of that expenditure, only £150,000 was spent on complaints. So where is this great build-up of complaints that makes necessary these additions to legislation to further control and examine and provide for extra sanctions?
On the rule of law, I think we can take issue with what has been said about the financial sector. Are trade unions a part of our society that does not believe in the rule of law in terms of the Certification Officer? Great detail is required in the submission of returns, in dealing with inquiries and, when dealing with complaints, in providing extra information. According to the analysis, 98.8% of all returns to this body come in on time. These are not organisations that are disregarding the rule of law in the current situation. So you have to ask why these extra powers are now required.
It is not easy for people who have been in the trade union movement to argue against third-party complainants but in any political organisation, there are cranks. The Conservative Party will have them as much as every other political party, and the trade unions have a number of cranks as well. If you open up complaints to third parties you open up to the world of cranks, and you have to ask: is there any sign of a build-up of complaints from third parties that needs to be answered? According to the Certification Officer, he had only 500 inquiries in the year of his last report, and 200 of those were probably just asking to see the accounts. They were not complaints, they were just general inquiries. There is absolutely no reason for this increased bureaucracy to be imposed on the trade unions. Frankly, in pretty much every other business sector the Conservative Government would totally reject this incursion.
The 1992 Trade Union and Labour Relations (Consolidation) Bill had 303 clauses. Since then we have heard from the Certification Officer, and I have given the level of complaints and issues. It is actually working very well. Reading the evidence of the Certification Officer to the Select Committee, he seems a very honourable public servant of long standing and we should listen to his experience. As I say, this Bill has only 25 clauses yet the Government seem to think that it is required to further add to powers to investigate, enforce and so on with regard to the trade unions. There is no justification for this and we need an explanation of why the Government think it is necessary.
Lord Ouseley (CB)
My Lords, I want to make a very short contribution. The noble Lord, Lord Mendelsohn, has said virtually everything I was going to say, far better than I would be able to, and I am pleased about that. However, it is important to stress that Clause 15 represents an affront to fairness, justice and proportionality.
The Certification Officer’s independence, impartiality and integrity will be compromised by Clause 15. The new expansive investigatory powers and sanctions being vested in the Certification Officer, from the position of reasonableness, as we have heard, would in effect be likely to result in uncontrolled, unaccountable and non-independent interventions in trade unions’ reasonable and legitimate activities. There is no evidential basis to suggest that the expansion of powers is justified.
I will not repeat the assessment by the Equality and Human Rights Commission, which has been alluded to already, with regard to contraventions of the European Convention on Human Rights. I would like to reiterate one point raised by the noble Lord, Lord Mendelsohn, about Clause 15 and related schedules being relevant to the UK’s other legal obligations, particularly the International Labour Organization’s Convention 87 on the Freedom of Association and Protection of the Right to Organise. Will the Minister please indicate how the Government intend to respond to the ILO committee of experts’ request that the Government review a number of provisions in the Bill and provide comments on the proposals to extend the powers of the Certification Officer?
Lord Stoneham of Droxford
I am very reluctant to test the Minister’s voice, as I understand it is wavering a little, but she is proposing to increase the regulator’s costs by four times, and yet we are only going to see a modest increase in complaints. Is that a good use of money?
Baroness Neville-Rolfe
I think so. It is important that we have an up-to-date regulator. The £2 million that I mentioned is the upper end of the range in the impact assessment. Obviously, we do not know the figure for certain, and as we have said, we are going to continue to consult the Certification Office. Under a later amendment, we will come on to discuss the levy that will meet the cost.
Amendment 117A seeks to establish a separate independent adjudication panel whose decision will be required before the Certification Officer is able to exercise his powers under Clauses 15, 16 and 17 of this Bill. As I have already explained, it is common for regulators to make proactive investigations or to have the power to initiate investigations and then decide to take enforcement action where a breach of rules or statutory requirements is found—the point that was made about judge and jury. There are various regulatory models in the UK: many regulators—for example, the Information Commissioner, the Charities Commission and the Groceries Code Adjudicator—have internal processes for ensuring fair decision-making. They do not, however, have their decisions made by an entirely separate body that oversees their work.
In view of the Certification Officer’s independence—I emphasise to the noble Baroness, Lady Donaghy, that this will be an independent regulator, not a political appointment—it is only right and proper that procedures for investigations and decisions will be up to the Certification Officer. The Certification Officer has in fact recently referred to his early thinking on how best to manage his functions in the light of the requirements in the Bill. A range of different models is used by regulators, and we will have further discussions about the implementation processes with his office. The union will also of course have the opportunity to make representations to the Certification Officer before any decision is made. There will continue to be a right of appeal to the Employment Appeal Tribunal.
The noble Lords, Lord Mendelsohn and Lord Ouseley, asked whether the reforms were in breach of international obligations under the ECHR or ILO. It is important to be clear what the powers will be. The Certification Officer will be able to investigate and to determine whether there has been a breach, and then take enforcement. The decisions are then appealable, as I have said, to an independent tribunal. This is standard for regulators, and it has been established that this framework is compatible with Article 6 of the ECHR.
I am very grateful for the work of the noble Baroness, Lady O’Neill, on human rights, both in this House and more generally in the country. She asked whether Article 11, the freedom of association provision, might be breached. The Government do not think that effective and proportionate regulation infringes Article 11 rights, and our reforms do not interfere with the right to join trade unions. Having said that, I have listened carefully to the points about the oversight of the Certification Officer’s decisions, and I would like to reflect on them in the light of discussion.
The noble Lord, Lord Mendelsohn, asked about access to sensitive data. He was concerned that the Certification Officer would have quite a bit of sensitive data—a concern close to my heart. As I have said, the CO is independent from Ministers; the Government will not be able to see any sensitive data that he or she may hold. When handling data, the CO and his or her inspectors will need to comply with the provisions of the Data Protection Act. Any inspector whom the Certification Officer appoints will have a duty of confidentiality. The CO is also under a statutory duty to act consistently with rights conferred by the ECHR, as I have already said. Those are important provisions.
I come finally to the question that a number of noble Lords, including the noble Lord, Lord Oates, have raised about the risk of vexatious complaints using the new power. We are extending the potential to make complaints for members only to third parties. Concerns have also been raised that the Certification Officer might feel duty bound to examine all complaints, which could be very costly. I do not see it like that. Let me first reassure noble Lords that the obligations on concerns from third parties are different from those relating to union members. So while currently the Certification Officer must make inquiries following a complaint from a trade union member, he or she will be under no such obligation with concerns from third parties. He or she will be able to exercise judgment based on the evidence presented as to whether there are sufficient grounds for further investigation. The Certification Officer will remain independent, with responsibility for delivering against the statutory objectives. As I said, his or her enforcement decisions will remain subject to appeal.
Lord Mendelsohn
I accept the last point, but the report itself demonstrates that there are no problems with that. What is the case for any additional intervention? Can the Minister present me with evidence of any particular case or circumstance—anything, a report or a press cutting? I shall go on for a bit longer to give her the chance to respond on that point.
Lord Stoneham of Droxford
May I assist the noble Lord by pointing out that one area in which we will have more disputes is ballots, because of the Government’s determination to get rid of check-off?
Lord Mendelsohn
That is another extremely good point from the noble Lord, Lord Stoneham.
Lord Stoneham of Droxford
I shall speak also to Amendment 107. Both amendments stand in my name and in the names of my noble friends Lady Burt and Lord Mendelsohn. I do not want to detain the Committee for long on these amendments because, in many respects, we have already dealt with the issues in principle. This is obviously a further initiative to try to restrict the amount of intervention—in this case, by the Certification Officer.
I just want to remind the Committee that the original trade union Certification Officer was appointed in 1975. From memory—I was brought up on the Donovan report, so I think I am right in this—the intention was to try to eliminate disputes, particularly about union membership, within and between unions. Therefore, it was thought that there was a need for better records and the recording of membership and finances to reduce the scope for disputes.
I re-emphasise that the Certification Officer is there primarily to protect the members of individual unions, particularly when they are in some form of dispute or disagreement with their own union. Their complaints are absolutely key. I accept that an investigation initiated by the Certification Officer, particularly if it is a public servant with the experience of the current Certification Officer, is the least-worst incursion that we are seeing in this Bill. Certainly, it is much better than the third-party initiative, which I think is a charter for cranks and would lead to all sorts of muddle and unnecessary bureaucracy. I have already said that there is no evidence that there is pressure or a burden of complaints that need to be answered, particularly from third parties, let alone from union members themselves.
Given that the Government have now started to consult the Certification Officer, can we ask him whether he wants these powers to investigate himself? Does he think these powers are needed? Those are two questions the Minister has to ask in relation to these amendments. It is clear from the oral evidence the Certification Officer gave to the Select Committee that he sees problems with the complications that have now been caused. There are those who say that this is common for regulators, but there are now four distinct areas of requirement for the Certification Officer. He is going to be an initiator of inquiries, if he wants to be, in the form of a policeman; he is going to be an investigator; he is going to be an adjudicator; he is going to be an enforcer. There are quite a lot of complications there, given that this is a semi-legal process. I wonder whether the Government have really consulted the Certification Officer on what he thinks those problems are.
Finally, let us remind ourselves that the great tradition set by the Donovan report—and we have accepted that, as experience has gone on, that was ameliorated by further Acts—was that, wherever possible, where there are disputes within unions, whether a member organisation or voluntary organisation, the emphasis should be on voluntarily resolving them. Trying to set up a semi-legal process that becomes increasingly complicated and does not emphasise the voluntary nature of what you are seeking to do will make it more difficult and more expensive to resolve. That is precisely why, amazingly, a Conservative Government are causing the expenditure on this regulator to go up from £500,000 to £2 million—what an indictment.
Lord Mendelsohn
My Lords, I will speak very briefly as we have spoken to the principle of the amendment and the noble Lord, Lord Stoneham, made a very powerful case and asked some very important questions. I just want to address a couple of points on which I would be grateful if the Minister could give us more detail. If she is not in a position to do so tonight, perhaps she will write to me.
My questions are on the financial components of this. In the Certification Officer’s evidence, he said:
“Our provisional thinking on all this is to recruit some new members of staff and then to play it by ear and recruit as we go along”.
The increase that he talked about is his,
“provisional view, but we are warning our funders, ACAS, that we may ask for more money”.
Within the context of the impact assessment, additional inspectors will cost between £250,000 and £500,000 and will look at an increased number of investigations. The impact assessment also talks about a likely 10 additional enforcement decisions being issued against trade unions every five years. There is very little behind the assumption of how you get to the first cost or the second cost and how the two relate to each other. What are the anticipated number of inquiries and how many of those will go to determination or other sorts of things if we open this up to third parties? I would be very grateful if the Minister could provide more detail on that. As I said, if she is not able to do that now, I am more than happy to receive a letter.
My final point is to clarify the position and probe whether there is a way of ameliorating this. There are of course fears and concerns that the Certification Officer could be pressured into carrying out investigations in response to a request from employers, campaign groups or a variety of people. Will the Minister confirm that the failure to act on submissions from third parties could expose the Certification Officer to risks of judicial review? Are there any safeguards in the Bill to prevent the Certification Officer being pressured by malicious motives?
I am a great believer that legislation rarely changes the heart and is there to restrain the heartless. In the circumstances that there are heartless people who have ill intent against the trade unions—and I believe there are—how can the Certification Officer be protected from these sorts of vexatious complaints, the racking-up of costs and the problems associated with allowing judicial review to be a mechanism available to third parties on spurious claims? I would be grateful if the Minister could give us some sense of how that could be dealt with.
Baroness Neville-Rolfe
I start by responding to the noble Lord’s questions. On cost, I thought that that aspect of the impact assessment was quite helpful and clear, but I will look through it myself in the light of the questions that the noble Lord has asked and drop him a line. I will copy it to others who are interested, in all the nooks and crannies of this House, which I think is what we agreed on our previous day in Committee.
I also think that I went into some detail on the last amendment about how I saw judicial review and how the Certification Officer would need to act when looking at external, third-party complaints. But again, I will look at what I said, see if there is anything useful that I can add and cover that in the same letter.
The amendments seek to retain the current position by preventing the Certification Officer from making inquiries or taking enforcement action unless a complaint is received from a member in relation to two specific obligations—the duty to secure positions not held by certain offenders and a failure to comply with political ballot rules. As I have explained, the current system is reliant purely on complaints from union members. This relies on union members being aware of all the obligations on their union and of any failures to comply with them. Enabling the Certification Officer to consider potential failures without having to wait for a complaint from a member will enable him or her to take action should information on serious matters come to light, regardless of the source. That is consistent with our reform towards a more responsive and diligent regulator.
The noble Lord, Lord Stoneham, asked what the Certification Officer had said about these reforms. The Certification Officer set out how he might deal with the reforms and how they could be implemented when speaking to the committee.
Lord Stoneham of Droxford
Did he say that they were needed? That is the key issue that we need to know.
Baroness Neville-Rolfe
I am not clear whether there is yet a Hansard record of what he said.
Lord Stoneham of Droxford
I thought that the Minister said that, although the Government did not initially consult the Certification Officer, they had now done so. He has, it is perfectly true, appeared before the Select Committee and made certain views known, but I would have thought that it would be helpful for the Government to ask him his views, why he thinks reform is necessary and what powers he wants.
Baroness Neville-Rolfe
As far as I know, he has not given a view on that either in the committee or elsewhere. We consulted him on the implementation of proposals which obviously the Government have set out and believe to be necessary.
Like other noble Lords, I hope that the powers we are discussing under this amendment rarely need to be used because that would indicate compliance, which must be the goal of any good regulatory system. However, in the circumstances of failure coming to light, the Government strongly believe that the Certification Officer should be able to respond. It is important that we have a consistent and credible approach for all the reasons that we discussed earlier. I hope that these comments have been helpful and that the noble Lord will feel able to withdraw his amendment.
Lord Stoneham of Droxford
I thank the Minister for her reply. We have had a long debate on various aspects of the role of the Certification Officer. I shall withdraw the amendment, but I am sure that we will return to this on Report.
Lord Mendelsohn
My Lords, I think that we have gained a bit of momentum and I hope not to interrupt it.
We move on to a group of amendments which examines what happens to a union when it is unable to comply with the Certification Officer’s enforcement order. Clause 17 of the Bill provides the Certification Officer with a new power to impose substantial financial penalties on unions. Schedule 3 states that the maximum and minimum penalty amounts can be set in regulations but they cannot be less than £200 and cannot exceed £20,000.
The Secretary of State is given a power to issue regulations setting different amounts in relation to different enforcement orders and to reference penalties by whether the person in default is an individual or an organisation and by the number of members that a trade union has. We would be very grateful if the Minister could provide us with the Government’s thinking on those areas and how they are looking at setting those fines and how they are likely to operate. Given the momentum we have now achieved, it may be better if that information were provided in writing rather than from the Dispatch Box. However, if the Minister already has the relevant details, they would be gratefully received.
I return to an important issue. At present, the Certification Officer cannot impose financial penalties. I know that this is a repetitive line of questioning but I will ask the Minister again: what evidence has been provided as the basis for the Government to introduce these measures? From reading the Certification Officer’s evidence at the Select Committee and his annual reports, there was no sign of the need for a serious measure such as financial penalties for him to be able to exercise his powers effectively. The Government’s impact assessment predicts that if the Bill comes into effect, the Certification Officer will on average issue 50 declarations and enforcement notices during every five-year period. This is an increase of 10 declarations every five years. On each occasion, the Certification Officer is expected to impose a financial penalty, and a figure has been identified in relation to income from fines. As a result, it is anticipated that the Exchequer will benefit from fine revenue of £275,000 every five years. I would be very grateful to the Minister to be told how the Government have arrived at that figure. I am reminded that when you look at your credit card statement and it says that you have a credit card limit, it is a limit, not a target. An assumption that there is a £275,000 benefit to the Exchequer starts to create a target or underlines a series of assumptions which I think we should know more about.
There is no evidence of union non-compliance with the Certification Officer’s orders or any evidence of the Certification Officer raising concerns with government around the current enforcement regime. Therefore, the idea that there will be fines seems to underline a different series of assumptions or a different evidence base. I would be grateful if the Minister would indicate whether that is the case as regards either of those scenarios. I beg to move.
Lord Stoneham of Droxford
I will be brief because, frankly, discussing this issue will almost cost more—given all the noble Lords around the Chamber and all the people supporting us with the discussion going on until late at night—than this provision will raise in a year. The relevant figure is about £55,000. The impact assessment refers to five-year periods. I wonder why that is the case. The figures are so low. I could not find any evidence of enforcements in last year’s report, but, apparently, we have had eight enforcements per year on average. I am sure that the political advisers, the Minister, or whoever saw the impact assessment, thought that they had better talk in five-year periods because it makes the figure—40—sound bigger. If we put in these new powers, we will spend another £1.5 million and we will get two more enforcement orders a year. Goodness me, what is this? It is ridiculous. The Government are clearly contriving an issue out of nothing.
That goes back to my earlier point. The impact assessment says there is scope to increase the powers, but actually the Government have provided no evidence that it is necessary. The great sadness is that, as everyone knows, once you start having fines, interests become entrenched. Pride is at stake—nobody likes to be fined—so it becomes a legal process, it becomes drawn out and the poor old Certification Officer, who at the moment is doing a very good job trying to reach voluntary agreements, finds it more difficult because the parties become more intractable. And for what? For eight or 10 enforcement orders a year—goodness me!
Lord Dykes (Non-Afl)
I rise to intervene briefly, having listened carefully all afternoon to our exchanges. I thank the noble Lord, Lord Stoneham, for his remarks, and I fully support both this and the previous set of amendments. The more one thinks about this obnoxious, sad little Bill—well, it is a fairly big Bill, I suppose—the more one has deep misgivings about it.
I do not mean to embarrass the Minister, but I genuinely thank her for being a listening Minister on this occasion, and for listening very carefully. It is obvious that the Bill has been contrived, through the interstices of the central office apparatus of the party in power, to produce something that does not reflect the reality of modern trade union/employer relations. I cannot think of any examples, in respect of our exchanges on Clause 16 onwards, where employers have asked for anything in this field. That is fairly telling. Normally, Governments respond to legitimate lobbies, but that has not happened on this occasion.
I look back—it is a long way—to when I first entered the House of Commons in 1970 and the nightmare of the Heath Government, the National Industrial Relations Court, the Official Solicitor being called on to adjudicate, the dockers on strike, and all the rest of it. That all arose from anti-trade union legislation built on principles of prejudice, dislike and antagonism, rather than genuine constructive industrial relations—the kind of thing we see routinely in Germany and other civilised European countries where there is a much more balanced picture.
Given that the Minister has been a patient listener, and given that an expectation is building up that we will return on Report, which, if my memory serves me right, will be on 14 March, to lots of these fundamental points, I ask her, at this late stage in the Committee—we only have a short time to go before we conclude this four-day Committee stage—to indicate that she will come back with modern modifications to reduce the onerous and extreme extra bureaucracy being placed on the Certification Officer’s activities. They are not necessary and have not been requested by anybody, least of all the professionals in that department. I ask that she listen to these correct objections.
I am glad that the Liberal Democrats have been involved in objecting, and not just the Labour party, which is the main expert on industrial relations. It shows the authority of the genuine overall opposition—including on these Benches—to these really undesirable measures in a Bill that is widely unpopular among the people observing it. It is a pity that many are not bothering to observe it; they should be, because it is one of the worst examples of the Government’s illegitimate use of a so-called mandate based on 24% of the electorate. It is nowhere near a genuine majority of people in this country. People want proper, modern, civilised industrial relations that do not oppress trade union members.
I thank the Minister for her patience. She has the chance to indicate, either in her reply today or on another occasion, that, when the time comes, the Government will respond and make sure there is a definite change in the text of these clauses.
Baroness Neville-Rolfe
I thank Lord Mendelsohn for the amendment. This short debate has raised an important question about the proportionality of penalties for breaches in this area, and I want to emphasise the seriousness with which we should all view the requirements and obligations on unions. The impact assessment helps us to have a useful discussion in this House. It reflects conventions—I do not always agree with the conventions, as I am sure noble Lords opposite will remember, but penalty estimates are one bit of good practice that is rightly included when these assessments are prepared. I emphasise that it is not a target. It is about encouraging good compliance, including as a deterrent, and creating and maintaining public confidence by removing those unfit for union office and ensuring accurate trade union registers. Union leadership elections or political fund rules and ballots should all be carried out according to due process. Any irregularities, quite rightly, would raise concerns and damage confidence among not only union members but employers and the wider public.
We intend that the maximum penalty would vary according to the seriousness of the breach. This is a normal approach among regulators. Within this maximum, the Certification Officer may also set a lower penalty, depending on the circumstances of the case. In a number of areas that the Certification Officer regulates, he is currently limited to being able to make an order requiring the union to correct a breach. There is nothing to sanction a union that has failed to comply with a requirement, no matter how significant the failure. The additional option of a financial penalty being applied will ensure that appropriate sanctions are available as a remedy and a deterrent, as I have said.
Lord Stoneham of Droxford
Is the Minister going to give an example of where due process has not been followed which justifies extending enforcement powers?
Baroness Neville-Rolfe
The honest answer is: not this evening. Obviously, we are making the regulator more responsive. We are making some changes, and one of the things you look at when you review regulators is what the appropriate penalty regime is, and that is what I am proposing.
Lord Stoneham of Droxford
But normally when you reform a process, it is because something is not being enforced properly. I ask again: is there an example of where due process has not been followed?
