Consumer Rights Bill
Debate between Andrew Bridgen and David Nuttall(9 years, 10 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Mr Nuttall
If those organisations want to ensure that the tickets are being used by the clubs, that is for them to deal with. We have seen what happened with the Rugby Football Union. The tickets are sent to the clubs, supposedly for use by the grass roots, and they are then sold on by the clubs. The tickets get leaked out into the open market. We cannot interfere with the free market; that is a fact of life. No matter how we dress it up or what legislation we introduce, tickets will find a way to be sold at the market price—what somebody is prepared to pay for it.
Andrew Bridgen (North West Leicestershire) (Con)
My experience of the RFU at Twickenham is that rugby tickets are given out on allocation and request to local clubs—the grass roots of rugby—at a certain price. Were those to be sold on the black market at a higher price and the RFU were to discover it, that club would then get no allocation of tickets for several years. That was a reasonable protection that was placed on the sport.
Lawful Industrial Action (Minor Errors) Bill
Debate between Andrew Bridgen and David Nuttall
Mr Nuttall
I thank my hon. Friend for his intervention, and I agree that this is important. I shall look at the case law shortly.
I shall turn to the detail of the Bill very shortly, Mr Speaker. The early-day motion was signed by 133 Members, including the previous Member for Bury North. The hon. Member for Hayes and Harlington is to be commended for his determination in bringing this Bill before us today.
The House must not take the Bill lightly. It contains just two clauses—one is substantive, the other deals with the short title and details of the commencement provisions—and there is a real danger that, because of its brevity, many Members might think that it is a trivial matter that can be disregarded. We should not take it lightly, however. There is a danger that, because its title contains the word “lawful” and, in parentheses, the words “minor errors”, we could be lulled into a false sense of security. Those words might suggest that it is a trivial piece of legislation that will merely tidy up some long-forgotten legislation that contained one or two technical errors, but nothing could be further from the truth.
Andrew Bridgen (North West Leicestershire) (Con)
Does my hon. Friend agree that the Bill is in fact a Trojan horse, out of which could spring lots of legislation that could lead to making the UK economy far less competitive, damaging industrial relations and the potential for growth in the economy in the difficult times ahead?
Mr Nuttall
My hon. Friend is absolutely right. There is a real danger that the Bill could be a Trojan horse. It could easily take us into new territory. It could also take us back to a previous era that many people outside the House thought they had seen the last of.
Mr Nuttall
My hon. Friend is absolutely right. In most areas of the law, people are quite rightly expected to follow it to the letter. In the particular area of trade union law, the possibility of human error coming into the process is taken care of, I submit, by the provisions of section 232B of the 1992 Act, which specifically allows for minor, small, accidental failures to be completely “disregarded”. That raises the question of why on earth this Bill is being introduced at all, particularly following the decision of the Court of Appeal in the British Airways plc v. Unite case earlier this year. I accept that it was only a majority judgment, but it was nevertheless a judgment of the Court of Appeal, so it should be given time to bed down, as it put forward a fairly clear view of the law.
Andrew Bridgen
Can my hon. Friend think of any other aspect of the law where “substantial compliance” is considered sufficient?
Mr Nuttall
There are various areas of the law. We have a de minimis rule, for example, which covers cases where there has been a trivial or minor breach. The judges will often overlook such a trivial or minor error if it could be construed as complying with the de minimis exclusion for understandable human error.
Mr Nuttall
I am sure, Madam Deputy Speaker, that Mr Speaker is most upset that he has not been able to stay and listen to the rest of this interesting debate, but he will be able to read it later.
I thank my hon. Friend the Member for Shipley (Philip Davies), who raises an interesting question. The point was made earlier that the provision might be a Trojan horse. If we go down the path of referring to matters as substantially complied with, or saying that, taken together, there has been substantial compliance, there is a danger that it leaves open a gaping hole. What is not substantially compliant? What should we do if someone complies with their health and safety policy for 51 weeks, but not in the other week? Such an approach does not make sense. During detailed examination of clause 1(3), I shall consider whether the Bill takes us any further forward.
Andrew Bridgen
Does my hon. Friend agree that the problem is not just with substantial compliance some of the time, but with the fact that some groups will be allowed substantial compliance, whereas other groups will have to adhere to complete compliance all the time?
Mr Nuttall
My hon. Friend is right. I can well understand those who comply with the law for all of the time not being too happy about other groups being allowed to comply with the law for only part of the time. The rest of the time they can say, “Well, we have substantially complied with the law.” What should we do with a burglar who said, “Well, I’ve been substantially compliant with the law for 364 days of the year, but today I happen to have fallen foul of the law”? Should we let him off? What absolute nonsense.
Any employee who breaches their contract of employment leaves themselves open to the risk of being found liable, under the law of tort, to their employer, for breach of contract. That applies whether the contract is for unskilled manual labour, skilled manual labour, or what is often termed white collar services. The liability applies equally to those organising industrial action, such as—but not necessarily exclusively—trade unions, because those concerned will seek to procure a breach of contract, which is a tort under English law. Under those circumstances, both individuals and trade unions risk incurring liability to the employer. I add that there is also a potential liability to third parties. In individual terms, the employee is also, of course, liable to be dismissed.
Only through the protection afforded by statute can employees and trade unions escape the consequences of their actions in withdrawing their labour and breaching the terms of their contract of employment. That was first accepted, as the hon. Member for Hayes and Harlington mentioned, as long ago as 1906 when the Trade Disputes Act was passed. Prior to that, the common law provided that trade unions were liable to claims for damages for inducing a breach of contract. The 1906 Act granted them immunities from those liabilities. As I mentioned in response to my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg), 100 years earlier the Combination Acts of 1799 and 1800 made it illegal for workers to join together and press employers for shorter hours or increased pay. Those Acts remained on the statute book until 1824 when they were repealed, to be replaced by the Combination Act of 1825.
Mr Nuttall
Thank you, Madam Deputy Speaker. I will indeed.
My hon. Friend the Member for Shipley (Philip Davies) is right about the devastating effect of industrial action such as that to which he referred. In the case in question, it looks as though the action was specifically arranged and organised to hurt people who had waited all year for their holiday. Therefore, it is not surprising that the law drawn up in 1999 should expect the highest standards of compliance. In view of what you have said, Madam Deputy Speaker, I will skip over the next portion of my remarks. Let us jump forward to the late 1970s. I think that this is relevant, because that was the time when trade union powers reached what could be described as their zenith.
Andrew Bridgen
Does my hon. Friend agree that the fact that Bill seeks to send industrial relations between employees and employers back to the late 1970s should come as no surprise, given that the new Leader of the Opposition seeks to swing the politics of the Labour party back to that time, and that the great consolation for Conservative Members is that Labour will therefore be out of government for a very long time?
Mr Nuttall
No, I do not. We have not yet had time to see the details of the Court of Appeal’s decision in the case of British Airways plc v. Unite. The court’s judgment, which was quoted by the hon. Member for Hayes and Harlington, was quite clear in regard to the effectiveness of the law.
There has been such a long line of cases of this kind, and it is interesting to note that time and again they have involved the same union: Unite. One would think that by now Unite, and the people whom it employs to conduct the ballots, would have learned how to do it, but apparently not. The Master of the Rolls recognised that. Delivering his dissenting judgment in the Court of Appeal, he said that he agreed with Mr Justice McCombe, who had delivered the earlier judgment in the Queen’s bench division. He said that he did
“not consider that the Union has a good prospect of establishing at trial that it complied with section 231. On the contrary, I would not regard its prospects as promising.”
He reached the conclusion that
“the requirements of section 231 seem…at least as at present advised, to be unnecessarily prescriptive and strict, particularly insofar as they can be relied on by the employer and particularly in a case such as this… Having fallen foul of the technical rules of the 1992 Act in a ballot a few months earlier, the Union might have been expected to take particular care over complying with all those rules in what was effectively a rerun of that ballot.”
So there we have it: the Master of the Rolls saying in terms that the union had had one chance, and had got it wrong. A few months later it did effectively the same thing, and got it wrong again. My hon. Friend the Member for Dover (Charlie Elphicke) is quite right.
Let me now return to the detail of clause 1, which seeks to amend section 232B of the Trade Union and Labour Relations (Consolidation) Act 1992. Subsection (2) would add the words “or notice”. Previously compliance had been required only if a ballot had been held, but sections 226 to 230 require notice to be given to the employer as well. Section 226A requires the notice to be given
“not later than the seventh day before the opening day of the ballot”,
and to be
“received by every person who it is reasonable for the union to believe”
should receive it.
In considering whether this is a sensible provision, I ask myself why notice should not be given to all the other people who would be affected. I would consider it sensible for the Bill to require it to be given not just to the employer, but to others who would be affected by the union’s actions, such as post office and railway users’ groups. Section 226 states that it would help the employer to be able to make plans and bring information to the attention of some of his employees, because other employees might be seriously affected if half their colleagues walked out on strike. It is entirely right that there should be compliance—full compliance—with the requirement for notice to be given.
Andrew Bridgen
Compliance with the notice period is essential because, as my hon. Friend has pointed out, there are suppliers downstream and users upstream of the business who need to be informed of potential industrial action.
Mr Nuttall
Indeed. The time is needed so that other people—not just other employees—can be notified. Deliveries may need to be stopped, and customers may be waiting for those deliveries.
There is a strong argument for increasing the notice period. Section 226A(1)(a) requires only seven days’ notice, which is not very long. It will include a weekend, so there will be only five working days. That is not a long time in which to make all the necessary preparations, especially when the company involved has never experienced a strike before and does not know what to do. There will be a lot to be done in those seven days. There is a lot of merit in the argument that the period should be extended to 14 or 28 days, so that people know where they stand if a union starts to take industrial action.
Mr Nuttall
I thank my hon. Friend for that intervention. The position is more complex perhaps than I originally intimated. Section 232B(2)(b) says that, in relation to a ballot, if there is a failure or there are failures in respect of a provision mentioned in subsection (2) or other provisions, and the failure or failures are accidental and on a scale that is unlikely to affect the result of the ballot, those can be disregarded. It is worthy of note that the section already makes provision not just for a single failure but for failures, so it already provides for more than one failure. There could be several failures and the law accepts that at the moment. It accepts that there could be multiple failures and the existing legislation would still potentially allow those to be disregarded by the courts, as happened in the case that has been so often referred to this morning—the case of British Airways plc v. Unite. There were a number of errors. The Court of Appeal, by a majority, decided to allow the appeal and discharged the injunction that had been obtained at first instance by the court.
Andrew Bridgen
Does my hon. Friend agree that the Bill effectively will give special rights, privileges and concessions to unions that are not given to any other groups in this country?
Mr Nuttall
My hon. Friend is right. The concept that is introduced by the proposed amendment to section 232B of “substantial compliance” is a novel concept. I have not heard in the opening remarks in the debate about any other legislation where that is referred to, and therein lies quite a major problem with this legislation.
I turn to the crux of my argument.
Mr Nuttall
My hon. Friend hits the nail on the head. Back in 1999 there was a new Labour Government with a substantial parliamentary majority, and they could very easily have introduced a measure along the lines of the Bill, but they did not do so because it is a bit of a dog’s breakfast. It is not clear what substantial compliance means; there is no definition in the Bill and our attention has not been drawn to any previous case law or to any academic analysis of what would or would not constitute substantial compliance.
Andrew Bridgen
Is not the crux of the matter that if substantial compliance had been fully defined in the Bill, that would merely move the legal argument on to the question of whether actions might or might not be likely to affect the ballot?
Mr Nuttall
My hon. Friend is right. Whether or not something may or not result in the ballot being affected is a very moot point indeed, and it could exercise the courts for a very long time.
I think there is a danger that the lawyers are sitting out there rubbing their hands with glee, because when they see the Bill they must think, “Marvellous! We’ve almost run our course in respect of the 1992 and 1999 legislation, which has been to the Court of Appeal, but we are now going to move back to square one and start again. We can spend hour after hour in the Queen’s bench division and then the Court of Appeal.” The issues will not be dealt with in, say, Uxbridge county court.
Mr Nuttall
My hon. Friend makes a reasonable point. One difficulty in defining a small or minor error is the size of the electorate. Something that could be regarded as a small error that could be safely disregarded in one trade union would not be appropriate as a matter to be disregarded in another trade union. Even when a conclusion has been reached in proceedings that might at first sight result in apparent settlement of the law, that is not necessarily the case if the union involved is the size of Unite rather than the size of the garment workers’ union, which might have nowhere near the same number of members. This is an important issue that will affect employers and the law will not be clear even after the Bill is passed.
Andrew Bridgen
Perhaps I could bring to my hon. Friend’s attention another complication that might not have been considered of the possible implications of this Bill. If we move the burden of proof from the unions to the employers regarding substantial compliance with the provisions and the phrase
“on a scale…unlikely to affect”,
does my hon. Friend agree that there could be a field day for the lawyers when employers, perhaps reasonably, claim that the unions have not complied fully by providing them with the information they need to decide whether there has been substantial compliance with the Bill or whether any errors are on a scale unlikely to affect the Bill’s provisions? Would that not therefore require further legislation to give employers the rights to obtain the information from the unions in a reasonable, timely and full fashion? That is yet another field day for the lawyers and, yet again, will fail to achieve the aims of the Bill.
Mr Nuttall
My hon. Friend is quite right. That is a point that I did not consider fully—I apologise for that—when going through clause 1(3). There is a risk that that subsection, taken together with subsection (5), will mean that the employer now has the problem—it will be a problem—of bringing before the courts evidence that there has been substantial compliance or non-compliance. All the evidence might well be in the hands of the trade unions, and it will be very difficult for an employer to be able to satisfy a court and, under this Bill, they would have that responsibility. Employers would have that burden placed on them. How on earth can they be expected to fulfil and meet that requirement when the information is in the hands of the trade unions? As my hon. Friend reasonably and rightly says, it would perhaps be more understandable for there to be a provision in the Bill to require the information that the court needed to be handed over so that there could be no doubt that there was a full requirement for the trade unions to hand over to the employer all the relevant information to enable the employer to submit an action to the court. Without that information, the employer would have no reasonable basis on which to instruct their solicitor, and there would be no way for a solicitor to instruct counsel, because they would not have the facts and figures to enable them to make their case.