Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Bill Debate
Full Debate: Read Full DebateLord Whitty
Main Page: Lord Whitty (Labour - Life peer)Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Bill
Lord Whitty Excerpts
Baroness Turner of Camden (Lab)
I rise to support these amendments. This section of the Bill is yet more evidence of the opposition of the Government to the interests and desires of ordinary working people—to their need to organise to represent their legitimate interests at a time when employment rights are constantly under government attack. Now we have this attempted legislation, which is a direct attack on unions and their ability to represent their members and provide a service to them. There is already legislation in place as we have heard, in the 1992 Act, which requires unions to maintain a register of members with a certification officer in charge of implementation. As my noble friend has pointed out, there have been hardly any complaints under that legislation and only one with any substance requiring further examination. The Government have not produced any evidence to support the amending legislation they are now proposing.
Government spokespeople often stress the importance of voluntary organisations, but unions are among the largest voluntary organisations in the country. Although the media, most of which seek to demonise unions, refer only to union bosses, most local and workplace work is done by willing volunteers. Yet unions are the only voluntary organisations to have this kind of internal bureaucracy imposed upon them and at their expense. The CBI, employers’ organisations, organisations representing bankers and the fiscal industries do not have this; only unions are to have this additional expensive official, an allegedly independent person, who is not voted for by them but is imposed upon their internal administration.
What of the privacy of ordinary members? What of their confidentiality? It is clear that the Government are intent on making things much more difficult for a union affiliated to the Labour Party. However, not all of them are. Most are affiliated only after a ballot of those who pay the political levy, which is surely a matter for union members themselves. The TUC has made substantial criticism of the Bill, which it regards as an attack upon democracy. It believes that it would make organising a conference in advance of the general election, even its own congress in 2014, a criminal offence, because it would be in advance of an election.
The campaigning organisation, Liberty, has also opposed this section of the Bill, believing it to be a breach of Article 11 of the European employment rights legislation. The Government, of course, disagree. I regard this section as undemocratic and a further attack on the employment rights of ordinary people. The Government pretend that it is not. However, to weaken the ability of the unions to adequately do the job for which their members belong weakens those members. Strong unions mean better pay and conditions, which is one of the reasons why millionaires do not like them much.
We in this House should not be misled by media misrepresentation of unions and should recognise the contribution that they make to the support and welfare of ordinary working people. This section of the Bill should therefore be opposed. I fully support what my noble friend said in his introduction to this section.
Lord Whitty (Lab)
My Lords, I declare an interest in that I have been a member of the GMB for 40 years this year and was a member of other unions prior to that. I therefore have an axe to grind—not a pecuniary one—and I share that interest with millions of our fellow citizens and with many who are not in trade unions but who, nevertheless, benefit from the way in which trade unions operate in the market.
My Amendment 118C seeks to delete from the clause the reference to this peculiar new invention of an assessor. The Government have seen fit to invent a whole new profession and office for reasons which, as my noble friend Lord Monks said, are not entirely clear. The role of the assessor is dealt with in more detail in Clause 37, and I will return to make more detailed remarks in that respect. The central point is why the Government think that they need to invent a relatively costly new bureaucratic structure when they already have the powers in the role of the certification officer, who can deal with any complaint received, intervene and censure a union if inadequate documentation is provided. As my noble friend has said, there are already substantial penalties available to certification officers if ever one of the few complaints they receive is upheld. In this section of the 1992 Act, there is also the possibility for individuals to complain, not only to the certification officer but to the courts, about the failure of trade unions to maintain proper records and many other provisions of that Act.
So why is a new structure being proposed? As my noble friend Lord Monks has said, there are problems in maintaining a register of trade unions with names and addresses and accurate records. By and large, most of the population moves every four years, and the impact assessment recognises this. People change their address every four years and tend to move job slightly more frequently than that. In some cases, they change the way in which they pay their union dues, or the name of the company for which they work changes. At any given point, it is difficult to maintain a 100% accurate register, but the Act rightly says,
“so far as is reasonably practicable”.
That is the basis on which the certification officer makes a judgment.
It is not clear in this Bill whether the Government intend to invoke more stringent principles of how to decide whether or not it is an accurate register. If they are, it is not in the Bill. Is the assessor, or whoever advises them, to develop new codes? If so, the House should be told before we proceed. I will return to the role of the assessor, which appears in the next clause.
I also strongly support the aim of the amendment of my noble friends Lord Monks and Lord Stevenson to delete this clause and this whole part of the Bill. We have looked at the impact assessment, which estimates the costs to unions, the Government and employers. For unions, it is assessed at around £400,000. I have had representations from all sorts of unions—my own, the National Union of Teachers, which is not affiliated to this party, and the Royal College of Nursing, to which my noble friend has referred and which is not affiliated either to the TUC or to the party. These indicate clearly that the cost of implementing these provisions and initiating the changes in procedure and rules that is required would be substantially more than that.
Even more interesting is that only £140,000 is allocated to additional costs to the Government, whereas if they were really trying to enforce this, they should give the certification officer significantly more powers. It is arguable that under the present rules the certification officer may need more resources, but that is not what this Bill is about. It is about an entirely new approach to this area. The even more interesting part of the impact assessment is that the benefit at one point is described as nil. That is a pretty telling internal report on a proposal from Ministers: at a cost of £400,000, which I think will be rather larger, plus £100,000 or so to the Government, the benefit is nil.
My noble friend Lord Monks has already cited the Regulatory Policy Committee, which basically says that this is one of the daftest proposals that has ever come before it, and there is no justification for it. Even the Government, who have been scraping around for supporters of this Bill during a rushed consultation period over the holiday month, could not get more than lukewarm support from the CBI, which said that it would not be its first priority. Where are the Government coming from on this? The benefit to restating and providing a bureaucratic infrastructure to enforce the requirement of unions to keep membership records effectively is not justified in anything the Government have so far said about this, either in the impact assessment or in speeches in the House of Commons, which was of course very late in the proceedings.
Lord Whitty
My Lords, my noble friend Lord Monks has made a sophisticated case to the Government for making this whole clause and the invention of the assurer more palatable, or at least more workable. He has had to do so in a very complicated way because of the nature of the proposition. My opposition and that of my noble friend Lord Lea to the clause standing part is a more straightforward proposition: we are basically seeking to delete the clause.
We still have not had a proper explanation of why there should be an assurer. Incidentally, I need to apologise to the Committee and to Hansard: on occasion in the previous debate, I referred to an “assessor” rather than an “assurer”. I also apologise to the Minister. It was almost certainly down to my writing. The term “assurer” has a nice touch about it; it is as though the man from the Pru is coming round to collect your life assurance every now and again. However, it is not quite like that. What qualifications and what legal requirements does the assurer have to have? He or she is going to be employed by the union but approved by the state. This person may well be somebody with auditing qualifications but he or she is not an auditor, an accountant, a lawyer or a scrutineer in the sense of the ballot scrutineer, to which my noble friend referred. The post is an entirely new invention.
I go back to my earlier point. Why do we need this new invention? If the Government’s intention is to tighten things up, why do they not do that? Can we not rationally look at a proposition saying that the certification officer should have more powers or that the requirements on the union should be clearer or more stringent? However, that is not what the Government have proposed. They have simply proposed this intermediary, which is very strange.
I do not know how the general public will take to this. What is the assurer? It sounds to me like a third-rate television series: “The Assurer—Licensed to Check Membership Records”. Even more sinisterly, as in Nineteen Eighty-Four, it could be the kind of person who meticulously took notes of the proceedings of a committee in the old Soviet Union. He sat in the corner and nobody quite knew who he was, but you knew he was reporting on you, and you knew he was reporting to the Central Committee. Such a role is not of the organisation; it is not of the state; and it is not of a recognised profession; it is a new invention. To do exactly what? I do not think that, in all their interventions so far, or in what they have done with their advisers, the Government have come up with a clear definition of what this person is to do.
For the smaller unions—those with fewer than 10,000 members—the requirements in Clause 36 relate to an audit certificate. That is slightly more understandable. It has to be signed off by senior officers of the union. That is a procedure that many organisations know about. They have to bring in external auditors to check it and, if it is complicated, they have on occasion to ensure that their lawyers have seen it.
However, this new profession is not known to science or to society—or, so far as I am aware, is it known to legislation. If the Minister can point to a precedent I would be grateful, but it is not in any part of society that I am aware of, or in any part that bears any relationship to the context in which trade unions and employers operate.
If I were the Government, I would think that the best thing would be to delete this whole new proposition and instead get around to telling us clearly what this part of the Bill is supposed to do. Then we could have a rational debate. We might still disagree, but at least we would know what we were talking about. The main proposition here is to introduce into a very delicate and sensitive area—the issues of human rights and data protection have already been touched on, and will be again—an entity and a role that is unknown to all the players and unknown to the courts. If the Government were sensible, they would approach this in a cleaner way. They would make a proposition as to how they want unions to change their behaviour and what standards they want them to meet, and we would be able to see whether those were reasonable, rather than putting things in the hands of an entirely new concoction.
I therefore propose that Clause 37 should not stand part of the Bill. I hope that by the time we have completed our consideration of the Bill the Government will either have deleted it entirely or put something much simpler and more straightforward in its place.
Baroness Turner of Camden (Lab)
My Lords, I support the amendment moved by my noble friend. One point struck me particularly, from my recollection of my own work as a full-time official in connection with recruiting in areas where there was no trade union membership. I am referring to people who were new to the trade union movement. The lack of confidentiality implied in this part of the Bill would be a deterrent to recruitment. Obviously, if you are trying to recruit people who have never been in a union before and are not organised, the last thing they want is for their details to be made available to anybody. They want to keep things close to themselves until they have recognition. Obviously that is important to them. A number of us have raised the issue of confidentiality, which is threatened unless this provision is either removed entirely or substantially amended.
I do not see why we should have to vote for yet another official—this so-called assurer. Where is he to come from? What sort of background is he to have? What kind of voice will the ordinary members have in relation to this individual? We do not want this new individual. We do not think the role is necessary, and I personally oppose this clause altogether—although the amendments tabled by my noble friends would undermine to some extent the opposition that some of us have on grounds of confidentiality. This is very important to new members, particularly those who have not been in a union before and who need some assurance of confidentiality if they are to remain with the union and support it as it struggles for membership and recognition. I therefore completely support my noble friends in their opposition to this part of the Bill.
Lord Whitty
My Lords, I think that at Committee stage I can make a point. I think that the noble Lord, Lord Tyler, was out of the Chamber at an earlier stage when I said that I did not believe that it was the Bill’s aim to attack the funding of one political party. The Minister should respond to the noble Lord, Lord Tyler. I agree with him on most of his issues, including potential reform of party funding. However, he suggested in his intervention here that the Bill is not about better measures for trade union members and more transparency but about taking a serious step towards undermining the funding of the major opposition party. If that is indeed the case, this is an entirely different sort of Bill and one that raises even more important issues than have been raised so far. I should like to hear the Minister’s views on that.
Lord Tyler
I think the noble Lord, Lord Whitty, presaged his remarks with , “before the noble Lord sits down”, so I presume that I am still on my feet. I do not think that the noble Lord was listening entirely to what I was saying. I was saying that if the Leader of the Opposition’s proposal for a new relationship between his party and the unions is to be on solid foundations, surely one of the most essential elements of that new relationship has to be accurate membership records for the unions. This part of the Bill is important in that new relationship. I hope, therefore, that the Labour Party and its leader will think very carefully. If they want to improve this part of the Bill, I am sure that the Government would be interested—although I cannot speak for them. It is important that everybody should have confidence in the accuracy of membership of the unions.
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?
Lord Whitty
I want to ask the noble Viscount two questions. He has been slightly more explicit about the role of the assurer, but why is it not possible just to add it to the role of the auditor for the trade union? I am grateful for the offer of help to sort out the Labour Party’s internal constitutional matters, but the Minister did not reply explicitly to the point I was making. I would like to have it on the record that the Government do not intend this Bill to be the paving stone for reforming political funding; that is, an attack on the funding arrangements of the major opposition party. Can we have it made clear that that is not the motivation behind this part of the Bill?
Lord Monks
My Lords, this group of amendments covers similar territory to the previous debate, so I shall not go over all that ground again. The amendments continue to emphasise the extent to which the Bill engages with both Articles 8 and 11 of the European Convention on Human Rights and EU and UK data protection requirements. Amendment 144 limits who can be directed to comply with requests from the assurer. We emphasise the need to do that centrally rather than it being done by some voluntary branch secretary or district office. The responsibility should be at head office with the person who controls data.
Amendments 147 and 150 would allow an inspector to request information from employers. We have just been debating that important issue, which employers are hiding from. I do not see how an assurer could do his job properly without that kind of right. Amendment 151 aims to ensure that the inspector owes a duty to the trade union that is employing him or her, as well as to the certification officer, especially not to breach confidentiality. The amendment seeks to disqualify from acting in this role an inspector who commits breaches. Amendment 152 again tightens the parameters of what an inspector has to do to maintain confidentiality—not just to take all reasonable steps but to take all steps necessary. Without being repetitious, I beg to move.
Lord Whitty
My Lords, I have four amendments in this group that relate to roughly the same territory—Amendments 145, 146, 148 and 149. In the previous clause we were concerned about the access of the assurer and those who approach the assurer to the membership records of a trade union. My amendments relate to the certification officer and the inspectors, or staff, of the certification officer.
Obviously, when there is a complaint from a member about the way in which his records have been dealt with, the certification officer or his agent needs to be able to look at that part of the records. However, the totality of the records of the trade union needs to be protected in almost all circumstances. My amendments propose that the documents that can be demanded by the enforcement authorities will not normally include the complete register of members.
On earlier amendments, my noble friend Lady Drake and others emphasised how important this is to civil liberties. When you are organising a trade union against employer hostility and the employer can go to the authorities to find out who in his workforce, or which potential recruits into his workforce, are members of a trade union, that is a serious restriction on the right to join a trade union with no detriment.
Taken one stage further, this relates to the issue of blacklisting. It has probably been a serious underestimate that some 2,000 people have been blacklisted over the years through the mechanisms established by certain companies in the construction industry. If all that the employers needed to do was get sight of a list of registered members of a trade union, or if there was a requirement after a third-party complaint for the certification officer to produce that list, the incidence of blacklisting would go well beyond the confines of the construction industry and the other areas where historically it has applied.
There is an important civil liberties, human rights and data protection issue here. I seriously counsel the Government to look again at the provisions here and to build in some safeguards themselves. The last thing that they want to do, I should have thought, would be to transgress data protection provisions. I hope that they would not wish to transgress the European Convention on Human Rights or the ILO conventions on the freedom to organise, join or not join a trade union. Yet these provisions in this part of the Bill and the role of the assurer move in that direction, and we need far firmer protections than are in the Bill to ensure that that is not exactly what will happen.
Lord McAvoy (Lab)
Will my noble friend comment on the dangers of blacklisting? An investigation carried out in Scotland by the former MP for Maryhill, Maria Fyfe, uncovered a list of people who were blacklisted. Among them was my name. I know that that might sound a bit ridiculous now, but that could have affected my employment and public record. Does my noble friend accept that it is quite right to emphasise the dangers of blacklisting?
Lord Whitty
Indeed, my Lords. The Scottish Affairs Committee in another place have performed a very good task in bringing this issue to light, but we have not seen everything; a lot of names on those lists were destroyed. Among them were people who some of us on this side knew, including my noble friend who obviously chose a change of career at just the right point. So far, at least, he has not been blacklisted from being a Member of either House of Parliament. This matter does not affect just some lunatic subversives out there; it can potentially affect solid citizens trying to conduct their trade, such as my noble friend in his earlier existence. This is a threat to liberty and freedom of association, and a threat to the Government’s reputation in the councils of the world. Please take this seriously.
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.