Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Bill Debate
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Andrew Gwynne
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Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Bill
Andrew Gwynne Excerpts(11 years, 2 months ago)
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Mr Djanogly
I actually think the opposite. I will be upfront about this. In the previous Parliament I did a lot of work on regulatory issues—the Companies Act 2006 and the Legal Services Act 2007, which was a major piece of legislation. That work was done, for the most part, on a consensual basis by the two sides of the House, and some pretty good laws were passed. My point is that the trade union laws were passed in the mid-1980s and are in serious need of reform and review.
Andrew Gwynne (Denton and Reddish) (Lab)
The hon. Gentleman says that the law is in need of review and change, but can he answer one simple question? What is the problem that these amendments and provisions are seeking to address? That is not clear me.
Mr Djanogly
I answered that specifically in reply to a question put by the hon. Member for Edinburgh South (Ian Murray), the Opposition Front-Bench spokesman. I have to say that one does wonder why we are missing this opportunity for reform; I am not sure. Perhaps it is because the Department for Business, Innovation and Skills is packed with Liberal Democrat Ministers. Who knows? Perhaps it is the Government’s more general reluctance to look at legislation governing unions and industrial relations. In any event, the toothless nature of the certification officer remains, despite so much having changed since 1984. For example, on the membership register, in the mid-1980s membership records were for the most part probably kept on paper. Official management and database IT systems were not very developed. E-mail did not exist for everyday use and communications with members and voting had to be in person or by post. Of course, postal voting at that time was seen as a novel idea to be used against the intimidation of members at the time of union votes—union intimidation being rife at the time.
There is another key difference between then and now. Unions are, in general, becoming fewer in number, but far larger and more general than in the 1980s.
Mr Djanogly
I have to say to the hon. Gentleman that the last time I visited the certification office was more than half a dozen years ago, so I am not totally up on what the latest one is thinking. However, from my experience of looking into the matter in detail—the regulations and laws have not changed—I know that the certification office has very limited powers. In fact, most people would not even see it as a regulator; rather, as I said, it is more like a Companies House collection box than anything else.
Andrew Gwynne
I am grateful to the hon. Gentleman for giving way; he is being very generous. Regarding his involvement with the certification officer, albeit several years ago, does he have any evidence that the current membership figures for trade unions are incorrect and therefore require the change in law that is being suggested?
Mr Djanogly
That is not an issue I have investigated. As I said, complaints emanate from members of unions, not from people outside unions, and I think that that is the wrong way to be going about such an issue.
Let us step back and look at the clause in the round. There is a fundamental question which, to be fair, was picked up by the Opposition on Second Reading and the hon. Member for Edinburgh South today, and it is implied by amendment 103: we need better clarification from the Government on the intention of these clauses. In the 1983 Government Green Paper, it was specifically claimed that decisions made by unions could be contrary to the wishes of their members and that union leaders often appeared not to be responsible to their members. The then Government made the case that legislation could limit malpractice, such as ballot rigging and forgery.
What, therefore, are we trying to do with improved membership registers? Are we concerned about the validity of strike ballots where key public services, such as London trains, are disrupted by a simple majority of an overall minority of members voting? Is there concern that ballot rigging is still going on because of poor membership records? Let us remember that the certification officer has very limited powers in such situations, and that the few powers he does have can be triggered only by existing union members, not by the public who are unable to get to work.
Yasmin Qureshi
I accept that there are many responsible employers, small as well as large, but the hon. Gentleman will know that many are not responsible. He must also know that there are workplace situations where people have problems, and we cannot take away from that. For most people, the reason they give their hard-earned money to the trade union movement—it is not compulsory: nobody in the workplace has to be a member if they do not want to—is that if there is a problem in the workplace, they will have someone to go to. We know from our country’s history that, over the years, issues of sex discrimination, equality legislation, and health and safety have often been dealt with by members going to their trade unions.
Andrew Gwynne
My hon. Friend is coming to the nub of some of the concerns about the provisions we are debating. Some of the information now being sought is sensitive, personal information, and in some of the workplace situations that she is describing, there is a concern—perceived or, in some cases, actual—about people being victimised because of their association with trade unions or, worse still, blacklisted.
Yasmin Qureshi
I completely agree with what my hon. Friend says about blacklisting and intimidation.
When people have a problem, they go to their trade union because that is the only body in the workplace that can assist them. Let us remember some of the issues that the trade unions have been arguing for over the years. Conservative Members constantly heap abuse on the unions—they talk about Unite and the other unions—but let me remind the Committee of some of the things the unions have campaigned for throughout their history.
The trade unions campaigned for proper wages. What is wrong with that? What is criminal or immoral about that? When the industrial revolution started, wage levels were very low, given the work that people had to do. Wages have gone up over the years, but even now it is impossible for most people to survive on the minimum wage. The unions are therefore campaigning for a living wage. What is wrong with that? I am proud of the Labour party’s links with the trade unions, and of the fact that we are actively involved with them. At the end of the day, trade unions represent ordinary working people. As my hon. Friend the Member for Edinburgh South said earlier, these are the people who cook and serve the food, who work in shops and who clean our streets, our offices and our toilets. They do the worst possible jobs. They also work in the NHS and the education system.
John Healey (Wentworth and Dearne) (Lab)
It is pleasure to follow the hon. Member for Stevenage (Stephen McPartland). He declared himself an optimist about the purposes of this part of the Bill and clause 36 in particular. The problem with the Bill, as well as with this particular provision, is the gap between the declared purposes and the provisions themselves. In clause 36, the problem is that the purposes are not clear at all.
In its confused content and its incompetent and chaotic handling, this whole Bill reminds me of a previous piece of legislation that the Leader of the House introduced—the Health and Social Care Bill. I led the opposition to that Bill. It was a Bill without allies and with a remarkable range of critics that saw Lord Tebbit and the trade unions finding common ground. The Leader of House, when he was Health Secretary, was forced to pause, review and reflect upon that Bill. The same problems with this Bill surely call for the same solution.
Let me now deal specifically with clause 36 and the amendments. My hon. Friend the Member for Nottingham North (Mr Allen), the Chair of the Political and Constitutional Reform Committee, told us that his Committee had considered the White Paper, the forerunner of the Bill, and that there had been no mention of part 3 or of trade unions. He said that, according to his calculations, this part of the Bill—including clause 36—had been published the day before the summer recess, eight working days before we were required to consider it in Committee today, and he rightly pointed out that the task of scrutinising these provisions would therefore fall to the other House.
I am not prepared to accept that, and the Committee should not be prepared to accept it either. It is part of our duty in a Committee stage such as this to exercise scrutiny in the House of Commons, but we have been unable to do so. We have been unable to do so because of the time scale, because of the lack of any wider consultation, and indeed, as we have heard this afternoon, because of the Government’s failure to provide the Committee even with some of the most basic documentation before asking it to consider the Bill. Such a degree of confusion and incompetence on the part of Ministers is unacceptable.
Andrew Gwynne
I entirely agree with my right hon. Friend’s critique of the Bill and, in particular, with what he is saying about clause 36, but is not the position even worse than he is suggesting? The Government have failed to explain to the House why the changes are necessary in the first place. We have not got a clue what problem they are trying to solve.
John Healey
I shall respond to my hon. Friend’s intervention in a moment. I want my speech to reflect what has been said in the debate so far, and the point that he has made has already begun to emerge during our discussion of clause 36 and the amendments.
Another point has emerged as well, and it constitutes a direct challenge to Ministers. The face of the Bill bears the following declaration from the Leader of the House:
“In my view the provisions of the Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Bill are compatible with the Convention rights.”
Members of Parliament and legal experts outside the House have rightly asked whether article 8 of the convention, in particular, is not confounded by the provisions of clause 36. The clause gives the certification officer, or any investigator whom he may appoint, sweeping powers of access to very personal individual information about trade union members, which could contravene article 8 and the right to privacy. As I think the Committee will appreciate, union members are rightly concerned and sensitive about the issue, given the recent history of blacklisting and discrimination on the basis of trade union membership or activity. What I should like the Minister to do when he responds to the debate—
Andrew Gwynne
My hon. Friend is absolutely right that many trade union members, for whatever reason, do not wish their employer to know that they are a member of a trade union but very much value their membership. Does he agree that those members’ concern is that their personal information might get into the hands of their employer and could be used against them in the workplace, particularly for future blacklisting?
John Cryer
That is a very good point. We have had all sorts of debates in this place on blacklisting recently; it is a problem that goes back many decades and persists in many sectors today.
My next question for the Minister is whether there has been any assessment specifically of the effect of the future legislation on the sectors of the economy that are particularly casualised. I am thinking of construction, agriculture, hospitality and catering. In construction and agriculture, particularly, the fluid nature of the work force means that it is difficult to keep accurate records of membership.
I have worked for three trade unions in the past and trade unions, more now than at any time in their history, devote enormous resources—as many as they possibly can—to organising records and keeping them up to date. As I said when I intervened on the hon. Member for Stevenage (Stephen McPartland), large general unions, particularly Unite and the GMB, can easily lose 12% of their membership, particularly at a time such as this. Their membership tends to stand still because they can recruit another 12% in the same sectors to take the place of those members who have been lost because of jobs being lost, factory closures and so on, but just to stand still they have to recruit 12%. The level of churn means that it is difficult to keep records up to date, no matter how many resources are devoted to record keeping. Of course, up-to-date records are dependent on members informing the union that they have moved house, for instance, or changed occupation. That does not always happen.
Andrew Gwynne
My hon. Friend is setting out what I think is the correct approach to dealing with trade union matters. He mentioned earlier the role of the certification officer. From his wide experience of trade unions, is he aware of any problems with the current role he has set out? If not, does he share my conclusion that this is merely a politically motivated attack on trade unions going about their legitimate day-to-day business?
Mr Doran
I thank my hon. Friend for that intervention. I am trying to be polite to the Government. I must say that I have not had any contact with the certification officer for some time, but I know from the years when I did have contact that there were problems—it would be unfair to say that there were not. When I was in the job, a number of trade unions were very unhappy with the changes that had been made in 1984 and were not complying. I know from my contact with the trade unions that that is all resolved, and the record speaks for itself. The certification officer does a job that is required of him. Some people might think that he requires too much of the trade unions, but the fact of the matter is that they have accepted the regulation and work within the rules as they are.
Ian Lavery
Unfortunately, I have been unable to attend the TUC conference for a number of reasons. Of course it is not a coincidence. It is part of the strategy of the coalition Government to attack trade unionists while they are at the trade union conference. Only a few Government Members have been here for this debate. There are only two present at the moment. That shows how much interest they have in the Bill. It is outrageous. This Bill is part of the Government’s clear-cut strategy to attack trade unions in any way that they can.
The real question is, what is the Bill about? I am really looking forward to the Minister’s response. She is a staunch Liberal Democrat. Some might say that she has sold her principles and her party down the river on many issues. Perhaps others would disagree. I am not sure, but my view is irrelevant.
Andrew Gwynne
My hon. Friend is being very generous in giving way. He is right to point out that clause 36 is neither liberal nor democratic if one is a trade unionist. There has been no explanation or critique of the problem that the Government are seeking to solve. Is that not what we need to hear from the Minister?
Ian Lavery
I fully agree with my hon. Friend. We have been in this debate for a number of hours and, despite many interventions from both sides of the Chamber, we have had no suggestion of what part 3 seeks to resolve. That can only mean that it does not seek to resolve anything. It is just bolted on to parts 1 and 2. It does not seek to do anything other than put a huge burden on the local trade unionists who are expected to compile the registers of the work force, as my hon. Friend the Member for Aberdeen North said.
Those same lay members who do their work on a daily basis have been hammered by the coalition Government in terms of their facility time. That is not a coincidence because up to 90% of public sector workers, particularly those in local authorities, have been hammered in that way. And yet those are the individuals who give up their time to ensure that their trade unions adhere to the legislation, including the Trade Union and Labour Relations (Consolidation) Act 1992. The attack on the trade unions by taking away facility time will make it extremely difficult for those people.
Ian Lavery
I totally agree with my hon. Friend. That is the point I hope I have established and I will continue to make it.
Section 24(3) states:
“A trade union shall—
“(a) allow any member, upon reasonable notice, to ascertain from the register, free of charge and at any reasonable time, whether there is an entry on it relating to him; and .
(b) if requested to do so by any member, supply him as soon as reasonably practicable, either free of charge or on payment of a reasonable fee, with a copy of any entry on the register relating to him.”
Andrew Gwynne
I am grateful to my hon. Friend for giving way to Back Benchers. His point is crucial to the decisions we will take today. Is he aware of any suggestion made to the Government by trade unions that they are not able to meet the requirements set out in the 1992 Act and therefore require new legislation?
Ian Lavery
Although the trade unions were not very receptive to the legislation initially, they accepted the change in the law. They accepted that the TULR regulations had to be adhered to, and they have done so—reluctantly, although now it is not too much of a problem. In fact, in many ways it helps trade unions to keep people pressed to ensure that they have up-to-date names and addresses for all members. The trade unions were not receptive at the time; they are happy now. Indeed, I have not spoken to any union or union representative, or even any union member or non-union member—not one person—who has told me that we need more legislation on union names and addresses in the register. Although the unions were not happy about the 1992 Act initially, it has been acted upon and delivered. There are not many complaints, as we have heard, to the certification officer because of problems with the names and addresses in the register or the legislation, so everything seems to be in order. Everything seems to be going ahead, yet the Government have put these proposals before us.
Mr Anderson
That is par for the course in this debate, Mr Sheridan. The Government are trying to stifle debate, and they are doing that by pushing the Bill through Parliament in record time. They do not want to hear the truth. They do not want to hear the facts. There is a thread running through this debate. It is not about the clauses; it is not about the words on the paper; it is about a political fix. The Minister’s party is colluding with the Tory party in an attempt—a direct attempt, as we heard yesterday—to fix the people in this country so that their voices are dumbed down.
The 1992 Act created the office of commissioner for the rights of trade union members, or CROTUM. There was also a Scottish commissioner for the rights of trade union members, or SCROTUM. That is what the debate, and the Bill, are about. It is fitting in this context. That office was set up deliberately to encourage disgruntled trade union members to get out of their unions and undermine them.
The Minister said that I should return to the subject of the clause, and I shall do so now. Let me ask this: why are we here? This debate ought to be driven by the huge public concern that exists in this country about cash for questions, cronyism, dinners at No. 10 and the buying of favours. We ought to be discussing what was revealed yesterday by my hon. Friend the Member for Bassetlaw (John Mann): the fact that private individuals pumped £250,000 into his constituency to try to prevent him from becoming Member of Parliament for Bassetlaw. We should be discussing those issues, rather than the minutiae of legislation that is already more than adequate.
As was pointed out by my hon. Friend the Member for Edinburgh South (Ian Murray), 40 million people have been registered on union lists in the last seven years, and there has not been one complaint. The people of this country are not concerned about what certification officers are getting up to; they are concerned about cronyism. They are concerned about the influence that Murdoch has, and the influence that private people have. They are concerned about people such as Asil Nadir and Michael Brown, who are languishing in jail while the Government parties keep money that they stole.
Andrew Gwynne
My hon. Friend is making a superb speech. If his constituency mailbag is anything like mine, he will have received hundreds of e-mails and letters about yesterday’s business. How many people in his constituency have raised concerns about the certification officer?
Mr Anderson
As the hon. Lady will know, I serve on the Northern Ireland Affairs Committee and I have been involved in the pre-legislative scrutiny of that Bill. The way it has passed through this House is a model of how to handle legislation. We went to Northern Ireland, we met people over there, we brought people to this House, and we talked about the implications of the measures. We talked literally about life and death matters, because people are frightened. They say, “If I’m exposed as supporting this political party, my life could be at risk.” That is a model of how to deal with a Bill, but it is the exact opposite of what has happened with this Bill—what has happened here is an absolute disgrace.
Inconsistency is a problem. I have mentioned a number of times that no one seems to think it is an issue. Three organisations that ought to know whether or not the current arrangements are working are the Department for Business, Innovation and Skills, the certification officer and ACAS, and they all say they have had no complaints.
We have heard this is part and parcel of a modernisation process. What about the Government’s system of one-in, two-out regulation? Regulations will be involved in implementing this measure, as will costs to the taxpayer, when we employ assessors and investigators. What does that do? I hope that the Minister will tell us how many regulations she thinks might be needed to put this in place and which regulations she will take out to cover for it.
It is clear from our discussions that there are two reasons why this measure is going to be pushed through. First, it will make it very much harder for unions to have democratically effective industrial action—that is clear. Secondly, as has been reported by Liberal Democrat Lord Tyler—this was mentioned by my right hon. Friend the Member for Wentworth and Dearne (John Healey)—it is about having an impact on the ability of trade unions to fund the political party they choose to fund. It is dead clear that that is what it is about. People are not stupid. Government Members expect the public of this country to be treated like fools, but people are not fools and they can see through this; the Bill is about “transparency”—there is a lot of transparency going on at this time. People know exactly what is happening.
Why should this “transparency” apply only to people who support the Labour party? Why are we not talking about whether it is right and proper that we can see what makes up the Labour party’s political fund? When are we going to see the same from the other parties? When are they going to cough up? When are they going to show us where their money comes from? We can see why they would not want to do that.
This measure is just like yesterday’s in that it is about Government Members trying to shrink away from accountability—the accountability that applies to those such as the TUC, the trade union movement, the Royal British Legion, the Robin Hood tax campaign and the National Union of Students. This is the accountability that people demand of us and that they will want to demand of us coming up to an election, and it is right that they should do so. It is the mark of a civilised society that we stand up and are accountable. Sometimes when we stand up we are found wanting and people get rid of us. Sometimes when we stand up we are not found wanting but they still get rid of us. That is called democracy and we should not be frightened of it. Clearly, Government Members are frightened to stand up and be made accountable.
Andrew Gwynne
Do the current regulations governing the trade union movement, which were so eloquently set out by my hon. Friend the Member for Wansbeck (Ian Lavery), not mean that few organisations are as transparent and open as the trade unions in the United Kingdom?
Mr Anderson
I thank my hon. Friend for that intervention, as there is absolutely no doubt about what he says. I do not think that any Government Member has said that it is not the case. The one Government Member who made a serious contribution was the hon. Member for Huntingdon (Mr Djanogly), who spoke about whether this measure should be more restrictive. Although I would not agree with his view, he was making the point that we have something in place. He was asking whether we could make it tougher, but even he accepted the fact that the certification officer was saying, “There isn’t a problem.” The numbers that have been cited clearly show that there is no problem.
The TUC was right to say that this measure is part and parcel of a package that is attacking free speech: it is limiting criticism of the Government or Government policies; it is threatening the legality of the TUC to do its business through its congress; it is preventing the TUC from having a national demonstration in the lead-up to any elections; and it is preventing campaigning. As the hon. Member for North Down (Lady Hermon) said, it also raises particular issues in places such as Northern Ireland and has implications there. So, if nothing else, we should be saying, “This is not on.”
My right hon. Friend the Member for Wentworth and Dearne asked the Leader of the House, when he was still here, why he will not do the same as he did when he was Secretary of State for Health—pause and reflect.
Jo Swinson
It is has been interesting that various hon. Members have highlighted some of the difficulties faced by unions when trying to keep large lists up to date, given the extent of churn. We recognise that considerable efforts are made, but that is a difficulty, so we want to reassure the public, union members and others in workplaces that proper processes are in place to make that happen. We are trying to plug a specific gap—
Jo Swinson
I hope that the hon. Gentleman understands why I wish to finish my response to the hon. Member for Scunthorpe (Nic Dakin) before I give way again.
Our modest and reasonable measure is a specific response to that gap, but it has given rise to a bit of hyperbole throughout the debate.
Andrew Gwynne
I am grateful to the Minister for giving way, but in what I can describe only as her rather waffling answer to my hon. Friend the Member for Scunthorpe (Nic Dakin), she failed to identify exactly what the problem is and why the measures are required. Will she tell the Committee what evidence she has to show that there is a problem?
Jo Swinson
If that is how the hon. Gentleman describes my answer to his hon. Friend, I would be interested to hear how he would describe several of the speeches we heard during the debate.
Trade unions have a significant impact on the lives of people in our country. We want to ensure that their membership lists are up to date, and everyone has an interest in that being achieved. As hon. Members have said, we know that that can often be a challenging process, for good reasons, so we want to provide assurance that it will happen.
Clause 36 will give wide assurance that unions know how to contact their members so that their decisions will reflect what their members want. We do not want to change the vital and positive role that unions play in society, but we do want to give confidence in their accountability.
Under section 24 of the Trade Union and Labour Relations (Consolidation) Act 1992, unions have to ensure that their lists of members’ names and postal addresses are accurate and up to date
“so far as is reasonably practicable”.
That section allows any union member to find out whether there is an entry relating to him or her and to see a copy of the information. Clause 36 builds on that by making unions give the certification officer an annual membership audit certificate alongside the annual return that they already submit. Clause 37 provides that a union with more than 10,000 members will have to appoint an independent assurer to produce the certificate, as well as setting out what is required for that process, but clause 36 states what smaller unions with fewer than 10,000 members will have to do. They will be able to have a union officer sign off the certificate with a statement that, to the best of their knowledge, the union has complied with its duties under section 24. I hope that the Committee will agree that that is a pretty light-touch approach and that the duty is not onerous in the slightest. Of course, we expect that smaller unions will have a less complicated register, so it is reasonable that a union officer would know the content well enough to be able to make such a statement.
As the clause is designed to give widespread assurance, all unions of any size will have to let anyone who asks to see their most recent certificate to do so, for which they may charge a reasonable amount, if they want. The certification officer will have to keep copies of all certificates and to allow the public to look at them. Subsections (3) and (4) allow a trade union to fulfil the new duty on behalf of its branches and require that federated unions comply with the new duty. Our aim is not to change what unions should already be doing to maintain their membership data, but to get them to provide assurance of what they are doing to their members and the public.
Ian Murray
I know you thoroughly enjoyed the debate on the previous group of amendments, Mr Sheridan, so it is great to see you in the Chair in this debate. I thank the Minister for her apology on the impact assessment. We had a committee meeting during the Division and decided to accept her apology, even if the impact assessment arrived in the Vote Office at 1.53 pm—we understand that that is the official time recorded.
Amendments 107, 116, 117, 119 and 120 address the concerns of trade unions, the Political and Constitutional Reform Committee, lawyers, trade unionists and organisations such as Liberty, which believe that clause 37 could result in the improper use of sensitive material and accidental disclosure. It also raises questions, as my hon. Friend the Member for Wansbeck (Ian Lavery) mentioned in his contribution on the previous group of amendments, about international law, specifically articles 8 and 11 of the European convention on human rights.
Amendments 107 and 119 place a legal duty and obligation to provide total confidentiality and an express statutory duty of that confidentiality for the assurer, in addition to the oblique references already in proposed section 24ZF. The assurer should therefore have a statutory duty of confidentiality to the union and, more importantly, the union’s membership. The amendments also ensure that the assurer agrees not to engage in conduct likely to lead to a breach of a union’s obligations under the Data Protection Act 1998.
It should be noted that union membership is in the significant category of sensitive personal data. It is not known how far the Department for Business, Innovation and Skills has consulted the Information Commissioner’s office on the Bill. There is a significant risk that the union might be held accountable for breaches by the assurer. Will the Minister address what discussions she has had with the Information Commissioner’s office on the new assurer position, and what its thoughts were on the ability of trade unions both to comply with the Data Protection Act 1998 and be responsible as the data holder to an assurer who, by nature of the definition of the Bill, is independent from that data controller in terms of the trade union? The 1998 Act is clear and it may be worth considering this issue in detail, Mr Sheridan. When one overlays the Data Protection Act with the Trade Union and Labour Relations (Consolidation) Act 1992, we can see how unnecessary the proposed changes are.
Andrew Gwynne
Is not my hon. Friend’s amendment is necessary to make it clear in the Bill that the assurer picks up the union’s responsibilities to protect its personal data?
Ian Murray
That is exactly the purpose of all our amendments to clause 37: to ensure that any independent person, as described in the Bill—whether the assurer, the certification officer’s staff, or an investigator that might be appointed by the certification officer—is covered by existing data protection law and the European convention on human rights. That was a timely intervention, as it is important to run through the schedules to the Data Protection Act and relate them directly to our amendments, and the overlaying of clause 37 and other clauses in part 3.
Schedule 1 to the Data Protection Act lists the data protection principles in the following terms. I realise this is slightly technical, but it is worth running through them to ensure that we have got it absolutely right.
“Personal data shall be processed fairly and lawfully and, in particular, shall not be processed unless—
(a) at least one of the conditions in Schedule 2 is met…”—
I will come back to that a little later, and, crucially, that—
“(b) in the case of sensitive personal data, at least one of the conditions in Schedule 3 is also met.”
It is a condition of schedule 2 that, because trade union membership is classed as sensitive personal data it has to have a category in schedule 3 too. Sensitive data includes trade union membership, so we have to take that category into account overriding schedule 2.
Interestingly, section 4 of schedule 1 to the Act states clearly that
“Personal data shall be accurate and, where necessary, kept up to date.”
This is a strong requirement of the Act and in this context trade unions must abide by that condition as a data controller. There is already a strong obligation on trade unions under the current legislation, the Trade Union and Labour Relations (Consolidation) Act 1992—I wish there was a shorter way of saying that—to keep membership lists up to date. We have discussed that at length this afternoon in terms of legislation already in place to deal with many of the issues that the Minister deems to be a problem that have to be dealt with in the Bill.
Appropriate technical and organisational measures should be taken against unauthorised or unlawful processing of personal data, and against accidental loss, destruction of, or damage to, personal data. Accidental loss could be a significant hurdle when being processed by independent assurers or independent investigators appointed by the certification officer, and that is a key concern for many stakeholders. The responsibility for the data under the Data Protection Act lies with the data controller at the trade union. They will be responsible for the actions of independent bodies looking at that trade union’s membership list.
Ian Murray
My hon. Friend makes an incredibly good point. One of the key aspects of the Trade Union and Labour Relations (Consolidation) Act is to ensure that trade unions’ membership lists are up to date. The current categories are set out in sections 24(1) and (2) of the 1992 Act—my hon. Friend the Member for Wansbeck (Ian Lavery) spoke about them a few hours ago—which contain provisions to ensure that anyone unhappy with their personal data being held by the trade union can apply to the certification officer for a ruling on whether those data should be held. There are therefore already strict rules about the data, which is right, given, say, blacklisting and whether data on trade union membership become an issue.
The purpose of amendments 116 and 117 is to restrict data collection in a trade union to collection from the data controller only. The data controller can subsequently obtain the required information from individual branches or sections, as mentioned in the Bill, but the responsibility for that must come from the data controller of the union, who has the legal obligations both under the Data Protection Act and their responsibilities to the Information Commissioner. Inquiries to other centres makes the job of the data controller near impossible. Trade unions manage their membership data carefully; that should be explicitly maintained in the Bill.
Such considerations have given rise to a fear that part 3, and clause 37 in particular, could result in a new scandal of people being blacklisted for being members of a trade union. That is the reasoning behind amendment 120, which would restrict disclosure of a member’s data to where the member had consented—that is, given explicit consent under the Data Protection Act—and the investigation of criminal proceedings. The list of other such circumstances set out in clause 37 is unhelpful in dealing with people’s data protection concerns and the blacklisting issues that might arise. Proposed new section 24ZG(3) of the 1992 Act, as set out in clause 37, is too widely drafted and creates other legal responsibilities that the data controller might not be able to meet.
In the last couple of years we have seen the increasing exposure of blacklisting activities in some sectors, in which individuals have concerns about joining a trade union for fear of victimisation at work and loss of employment. Increasing powers for state officials to access union membership records and addresses can only increase the deterrent against such activities. May I respectfully suggest to the Minister that, rather than increasing the regulation of trade unions through this Bill—which might increase the risk of blacklisting—the Government should take active steps to abide by the decision taken by this House back in February, after the Opposition day debate on blacklisting, to instigate an inquiry, release the information held by the Information Commissioner’s Office about the victims of blacklisting and look at a compensation package for those on the blacklists?
Andrew Gwynne
I am grateful to my hon. Friend for being so generous in giving way. Is not the nub of the issue—which I think he is coming to—that although the purpose of clause 37 is to increase transparency and confidence among the general public, it is likely to have the opposite effect for trade union members? If they felt that their personal data were at risk of falling into the wrong hands, that would have the opposite impact on union membership.
Ian Murray
It absolutely would. Given the evidence of blacklisting that has emerged over the past few years, particularly in relation to the inquiry by the Scottish Affairs Select Committee, it would be perfectly reasonable to assume either that someone might not wish to join a trade union, or that an existing member might wish to leave, on the ground that their membership could affect their employment prospects. That matter has not been dealt with in the Bill, as a result of the slapdash way in which it has been put together and placed before the House.
The Data Protection Act imposes strict conditions for processing sensitive personal data. Anyone processing such data must satisfy one of more of the conditions for processing that apply specifically to such sensitive data, as well as one of the general conditions that apply in every case relating to non-sensitive data. It is arguable that the Bill does not satisfy those conditions, which merely emphasises how incompatible it is with the Data Protection Act.
The conditions in schedule 3 of the Act for processing sensitive personal data are as follows. First, it is necessary for the data subject to have
“given his explicit consent to the processing of the personal data.”
The members would therefore have to consent explicitly, meaning that the assurer would have to contact all the members on the membership list, should they require the data. That would surely be impractical and, as my hon. Friend the Member for Aberdeen North (Mr Doran) said earlier, a requirement that the assurer contact everyone to obtain their explicit consent would impose an onerous burden of cost and bureaucracy on the trade unions.
The second condition in the Act states that the processing should be
“necessary for the purposes of exercising or performing any right or obligation which is conferred or imposed by law on the data controller in connection with employment.”
Unless I am mistaken, however, the proposal in the Bill has nothing to do with employment law. The third condition states that the processing must be necessary
“(a) in order to protect the vital interests of the data subject or another person, in a case where—
(i) consent cannot be given by or on behalf of the data subject, or
(ii) the data controller cannot reasonably be expected to obtain the consent of the data subject”.
That should not apply in the case of a trade union member. The processing must also be necessary
“in order to protect the vital interests of another person, in a case where consent by or on behalf of the data subject has been unreasonably withheld.”
I would imagine that, in relation to trade union membership, those conditions could be satisfied fairly easily. It is not clear that any of the proposed process is designed to protect the individual. It could therefore be argued that the Government have failed to tell us what problem they are trying to resolve, and what process they are trying to protect.
The fourth condition states that the processing must be carried out by a not-for-profit organisation and should not involve disclosing personal data to a third party unless the individual consents. Extra limitations apply to this condition, in that individual consents are required for disclosure to a third party. Will the Minister tell us whether the assurer or the certification officer are third parties? Would any investigator appointed by the certification officer be deemed to be a third party, given that they are deemed in the legislation to be independent? That would not be compatible with the responsibility of the data controller in the trade union.
In addition to those conditions in the Data Protection Act, regulations set out several other conditions for processing sensitive personal data. Their effect is to permit such processing for a range of other purposes—typically, those cases that are substantially in the public interest and that must necessarily be carried out without the explicit consent of the individual. The Government would have to put up a strong argument to convince us that checking a trade union’s membership list was substantially in the public interest, and I cannot see how the provisions in part 3 of the Bill can be deemed to be fulfil those conditions. It is difficult to construct a public interest test in relation to the annual membership list of a trade union. The nature of the consent required to satisfy the condition for processing sensitive data must be explicit. The Act particularly mentions the word “explicit”, yet it is not mentioned in the proposed new clause.
We have tabled amendment 108 to ensure that the assurer is a person of suitable calibre. The Secretary of State should explicitly set out regulations to ensure that the assurer can demonstrate a strong knowledge of and previous compliance with the Data Protection Act and other regulations relating to data protection. Our amendment 109 provides for the removal of an assurer if they are in breach of any of the confidentiality conditions, or if the trade union has any reason to believe that it would be inappropriate for them to remain in post. Amendment 118 would raise the bar on confidentiality, requiring the assurer to take “all steps necessary”, instead of the present “all reasonable steps”, to secure obligations under the Data Protection Act and other legislation.
Ian Murray
Under the Bill as it stands, the assurer can be removed, but owing to the weakness of the provisions relating to data protection, it is not clear whether he can be automatically removed if he does not abide by the Data Protection Act. Perhaps the Minister will be able to answer that question. Our amendments are intended to give trade unions the power to remove an independent assurer if they feel that he is causing a trade union data controller to be in breach of his duties.
Let me now deal with the question of whether clause 37 is compliant with article 11. The first issues that emerged from the Sunday Times v. United Kingdom case were “legitimate aim” and “pressing social need”. The Government’s discussion paper states:
“at present complaints to the Certification Officer (CO) about the register can only be made by trade union members and no-one else. In addition, members only have a right to see whether and how their own details are recorded. This means it is difficult for members to make a complaint in relation to the accuracy of the membership register as a whole.”
Liberty rightly argues that that is not a legitimate aim, as the position is already adequately covered by current legislation, and
“the independent scrutineer”
—for whom the Bill also provides—
“is required to examine the entirety of register of their own volition and report any issues to the union.”
That brings us back to the arguments relating to clause 36. Again, these provisions already exist in the Trade Union and Labour Relations (Consolidation) Act. The same reasoning lies behind amendment 110, which aligns clause 37 and provision for the appointment and removal of assurers—which was mentioned by my hon. Friend the Member for Birmingham, Selly Oak (Steve McCabe)—with the obligations conferred on scrutineers by section 49(1) of the Act. Any individual challenge to the regulator must involve investigation of the accuracy of the register as a whole, not just the member’s own incorrect entry. The current framework in section 24 of the Act allows for that.
Andrew Gwynne
Does not the scenario that my hon. Friend is setting out throw yet another potential problem into the mix? Would it not start to undermine the perceived neutrality of certification officers by dragging them into industrial disputes from which they have so far been excluded?
Ian Murray
That is a legitimate point. I do not know whether my hon. Friend was present during the last debate, but I can tell him that the certification officer figures are pretty stark. There have been 10 determinations since 1987, none in the last eight years and six between 2000 and 2004, of which five were dismissed and the sixth did not even constitute a formal determination. A new, erroneous part of the Bill could easily cause a certification officer to be dragged into a position that affected his neutrality—which, incidentally, trade unions and their members respect. Unions and certification officers work closely together, and certification officers are always keen to make the point that they are not opposed to each other, but share the aim of ensuring that unions operate correctly and within the law.
Let me now deal with the proportionality issue that arose from the case relating to article 11 of the European convention on human rights. Liberty states that the current regime satisfies the requirement that scrutiny be undertaken to ensure public confidence in the status of any register, and that the current measures to undertake that scrutiny are proportionate.
The increased powers of the certification officer are also disproportionate. First, it may invoke its increased powers if it thinks there is good reason to do so. That is very broadly drawn, and what constitutes a good reason in any case? Might it be a vexatious claim from a national newspaper to the certification officer to have a look at a particular membership list? That was the driver behind our amendment 103 to the previous clause, which the Government have just rejected.
Secondly, the certification officer can view not only the register, but any other document that may be relevant to determining whether there is a breach of section 24(1) of the 1992 Act and it can require people to give explanations.
Thirdly and ultimately, under clause 37 as currently written, the certification officer does not owe a duty of confidentiality to the union. The addition of a third-party inspector would be particularly intrusive and that inspector owes a duty of confidentiality only to the certification officer, not the union.
Liberty rightly concluded:
“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 as such constitute a breach of Article 11 of the Convention.”
There is, indeed, a compelling argument to be made that clause 37 breaches article 11. The justification for that claim arises from the fact that there is already legislation in place to deal with many of these issues.
Amendments 111, 112, 166 and 115 are intended to clarify the need for a trade union to take “all reasonable steps” to ensure membership lists are accurate. We discussed some of that language in our debate on the amendments to clause 36. This is completely consistent with obligations under the 1992 Act to take all reasonable steps. That language and responsibility should be reflected in clause 37. There will be an inconsistency of language if we remove the reference to taking reasonable steps in the 1992 Act and replace it with language that is more stringent on the trade unions.
The primary responsibility for the alterations to any membership list lies with the individual. That is already set out in section 24(1) of the Act. However, all too often a union member may move house, change jobs or even pass away and those details will not be passed on to the union membership officer for recording in a timely fashion. In some circumstances, it cannot be reasonable for a trade union to be held wholly responsible for every part of a membership list. People can take a complaint to the certification officer resulting in an in-depth investigation at great cost to both the public purse and the trade unions, when the 1992 Act clearly states that the responsibility for ensuring the accuracy of an individual’s data on a trade union membership list lies with the individual, not the union. If the union has taken “all reasonable steps” to make sure that list is accurate, such a matter should not fall within the remit of this Bill.
It should be the case that the assurer can make a determination that the union has, in so far as is reasonably practicable, ensured the entries in the membership register are accurate. That is what amendments 111 and 112 would achieve. They would give the assurer the power to qualify the membership audit certificate to say that information from employers or members has not come forward in a timely fashion and the union has taken all steps to ensure the information is accurate.
The issuing of any membership certificate will be based on information for just a snapshot in time of that particular moment and day. We have learned from the—late—impact assessment that about 9% or 10% of trade union membership flows in or out of a trade union at any given period. For a major trade union, that amounts to an awful lot of people to keep track of. If a union has taken “all reasonable steps” to ensure their membership list is accurate, it should be taken into account that the list will only be a snapshot of a particular moment in time. It should be possible to clearly state on the audit certificate that any inaccuracies are not the fault of the trade union and therefore the audit certificate is issued with that qualification. The clause as currently drafted would not allow for that.
Importantly, for that process to operate correctly the employers also have a duty of responsibility to the trade union membership audit certification process. Amendment 115 would give the assurer the right to access reasonable information from employers if it was determined that that information would be necessary for the performance of the assurer in determining the accuracy of a membership list. It would also allow for access to data that may satisfy the assurer that the trade union has taken all reasonable steps in compiling the membership register. Many unions have indicated that a lack of information from employers provided in an efficient manner is the main cause of the vast majority of inaccuracies in their membership lists. Giving the assurer the powers to make reasonable requests to employers for information means that there can be confidence that membership registers are indeed accurate. If anything comes out of this process and this bad part of the Bill, it might be that the assurer, as an independent person, could help the trade unions with some of those relationships with the employers, to ensure that the data coming from the employers make the lists that trade unions have far more accurate.
Ian Lavery
My hon. Friend makes an excellent point, but it makes us ask why on earth the clauses are being proposed in the first place.
Why are we having assurers and who are they likely to be? With their position layered between the trade union movement and the certification officer, will they be legally qualified? Will they be lawyers or, as is likely, accountants, or will they just be thoroughly decent people? Will they simply be independent people? Could they be people in this House? We need to examine this extra layer of bureaucracy. There is no need for it whatsoever, but if we must have these assurers, who on earth will they be?
Andrew Gwynne
My hon. Friend is right that we need more clarity from the Minister about the role of the assurer and who the Government expect will take that on. Is that not why Labour Front Benchers were right to table amendment 109, which proposes conditions under which an assurer may not be reappointed, thus allowing a union to terminate any contract with them? That could address the situation of an assurer who worked for a law firm that was advising an employer with which the union was in dispute, because that person would clearly have a conflict of interest between their union role and that of advising the employer.
Ian Lavery
My hon. Friend is absolutely correct, and although we have only started to scratch the surface, the proposal is getting worse by the minute.
Andrew Gwynne
My hon. Friend is absolutely right to talk about the impact of blacklisting on ordinary working people. It is something that we should all be concerned about. Is that not also why it was right for Opposition Front Benchers to table amendment 117, which would make it clear that a union should not have to provide information when doing so would compromise its obligations to protect members’ personal data under the Data Protection Act? That is absolutely crucial, and it is the least that the Government should concede today.
Ian Lavery
That is a very important point, and it was discussed earlier. There is a legal contradiction in relation to a trade union’s obligations under the TULR regulations to adhere to the Data Protection Act, which protects members’ private and personal details from being released. The new legislation gives powers to the likes of the assurer. Who knows who these assurers will be and what they could do with that information? It is therefore very important that we look at this. These assurers could be anybody. It would be very difficult to know whether they are part of an organisation that assists in blacklisting. The confidentiality of people in the workplace is a live issue. Why add another layer of bureaucracy by having these assurers? It is absolute poppycock. It is nonsense. Whoever dreamt it up should be fired. Hundreds, if not thousands, of people are affected by blacklisting and the situation could get an awful lot worse if the Opposition amendments are not accepted. Like many others here, I am sure, I have spoken to people who were not even aware that they were on a blacklist but subsequently found out that, for years, the reason they had been unemployed, their kids had not had the best uniforms at school and they had been on benefits was that they had been on a blacklist. That seriously concerns me.
There is a huge problem with confidentiality and with conflict resulting from the legal interpretation of the Data Protection Act and the 1992 Act. We have to support the amendments and try to kick out this absolutely hopeless Bill.
Julie Elliott
It is a pleasure to follow my hon. Friend the Member for Wansbeck (Ian Lavery), with whom I have worked in the trade union movement in my region for far too many years.
Clause 37 is all about the implications of appointing an assurer. As other Members have said, we have to draw to the Government’s attention the irony of the enormous added burden that the clause will impose on trade unions, given that we work in the most regulated part of the voluntary sector. The provision is absolutely unnecessary and is politically motivated. I had to say that before I turn to the two amendments I am most concerned about.
Why do people join trade unions? Sometimes it is because their friends join, and sometimes in their workplace it is just the done thing to join. Some people join to have an insurance policy in case they get into trouble or are picked on. Many join when they are first employed and want to maintain their membership as they get promoted up the ladder.
In workplaces where the majority are in a trade union, there are no secrets. Everybody knows who is in the union and it is common for both the lowest paid and most senior members of staff to be in the trade union. When I was a lay rep, I negotiated on behalf of my members and the senior manager I was negotiating with was a member of my branch of my trade union. That is common when a workplace has a high density of union membership.
However, in other workplaces, people who rise up the ladder and become senior managers may not want their managerial colleagues or the work force to know that they are in a trade union. Do not think that it is just those at the bottom end who do not want people to know that they are in a trade union.
People are also at their most vulnerable when there is no recognition in a workplace. Sometimes their jobs are under threat. People get victimised out of the door because the management have found out that they are union members; I have seen that on numerous occasions as a union official. As we discuss the clause, we have to look at the real world and how things work in practice, rather than at what is, frankly, an academic diatribe.
Andrew Gwynne
In the real world, my hon. Friend, like me, will have received hundreds of e-mails and letters about part 2 of the Bill. At her recent advice surgeries, how many people have been saying, “Do you know what, Julie, we need to appoint an assurer to ensure openness and transparency in the trade unions”?
Julie Elliott
My hon. Friend will not be surprised to hear that not a single person has said that. As my hon. Friend the Member for Wansbeck said, what does “assurer” even mean? It is such a nonsense of a description. As I said, we have to work in the real world. Good legislation needs to understand and relate to the real world, but nothing in clause 37 does, according to my knowledge and experience.
On amendment 112, let us look at the real world—the practicalities. This is about employers sharing information and accurate details with trade unions. Where there is a good relationship and a good recognition agreement, the unions work hand in hand with employers because if businesses do well, union members do well, and there is therefore complete transparency, openness and sharing of information. However, if that situation does not exist, that is not the case. The TULR regulations already set the requirements on the maintenance of the membership system. Various rulings have said that reasonable steps have to be taken to make sure that the membership records are accurate.
In my personal experience—that is where we can all draw our information from—bad employers will do anything to make trade union records wrong. That does not happen only in relation to membership checks for industrial action ballots, which are the most onerous and time-consuming things a trade union official will ever do. In can be a case of trying to get recognition in a company where members have been recruited. Usually it is when members in an unrecognised work force have problems that they go to a trade union. Time, energy and effort will have been spent recruiting the number of members to hit the threshold required to be able to apply for recognition. It is unbelievable the steps that employers will take to try to scupper those numbers. They will suddenly take on temporary workers. If the union is applying for recognition for a particular part of the work force, they will move people from one part of the company to another suddenly to boost the numbers so that the required percentage is not reached. The idea that employers of that mindset will share information about our members is ridiculous.
I would like to run through some of the things that we did when I was a trade union official to try to ensure that our membership records were as up to date as possible. A couple of times a year we sent out magazines to every single member of the trade union, and there was always a big advert saying, “If you move house, change jobs or change your telephone number, let us know.” It has become increasingly hard to keep membership records accurate. Historically people had land lines and did not change their telephone number; nowadays, a lot of people do not have land lines and mobile phone numbers can change quite frequently. There are an enormous number of inaccurate phone numbers in the records of trade unions, as there will be, I suggest, in any organisation. The situation is incredibly difficult. Any other mailing to members would have another advert or a paragraph saying, “If any of your details have changed please let us know.” We had branch audits where it would be a specific task in a certain branch to go through the membership records and physically talk to people about them. I do not think that trade unions could do any more to keep track of their members.
Another issue is that the world has changed. This goes back to my point about having to be practical; in my view, nothing in this clause is practical. Trade union workplace branches, which historically the unions were built on, virtually do not exist any more because the world of work has changed. People do not start work when they leave school and stay there until they retire. We do not have mass employers of thousands of people where people remain in their jobs and can gain promotion and go through the ranks in one company. That is not today’s world of work. In those days, it was quite straightforward to keep track of the membership.
All those things have made the situation more difficult. I hate the idea of what the clause proposes. It is saying that some random person on the street—the assurer, whoever this person is and from whatever background—could challenge what is happening and say, “You haven’t kept your membership records correct.” What is the level of leeway going to be? Where will reasonableness come into this?
John McDonnell
I want to follow on from the excellent exposé by my hon. Friend the Member for Sunderland Central (Julie Elliott) of the rationale for the concerns of the Opposition and others. To be frank, I thought that we had won this argument. As my hon. Friend the Member for Edinburgh South (Ian Murray) has said, we had a debate on blacklisting several months ago, in which there was cross-party understanding of the vulnerability that people feel in the work force. As my hon. Friend the Member for Sunderland Central has said, that vulnerability relates not only to blacklisting, but to victimisation.
I raised the issue in 1997 and in 2003. We got some legislation that was not effective and then I convened the first meeting of the Blacklist Support Group, which brought together in 2008 all those workers with blacklisting cases that they wanted to pursue. One of the breakthroughs for us was the raids undertaken by the Information Commissioner, under the Data Protection Act, that exposed the scale of blacklisting, with nearly 4,000 people on at least one list. People are anxious for us to ensure that any future legislation does not set up a system that could make them vulnerable again.
It could be argued that some of our amendments are a belt-and-braces approach, but this is about restoring confidence. The tragedy in the past—I do not mean to be hypercritical of any organisation by saying this—was that it was not just employers exchanging blacklist information. We now know that it was also coming from the police and security services and, actually, some renegade trade unionists, who passed information to employers who then went on to compile a blacklist. That is why, if we are to establish a new system that gives the certification officer a wide range of responsibilities and that appoints—in the words of my hon. Friend the Member for Wansbeck (Ian Lavery)—the bizarrely named assurer and inspectors, we need to ensure that there is a belt-and-braces approach so that they are properly tasked with abiding by the duty of confidentiality. That is why our amendments are so critical.
Amendment 107 states that it is important that the assurers
“have a duty of confidentiality to the trade union”.
It is critical that the trade union has confidence that those officers have such a duty. It is also critical, as amendment 108 sets out, that when those individuals are appointed, their qualifications are known and they are qualified to do the job. I hope that my hon. Friend the Member for Wansbeck does get the job and the wage from Len McCluskey. I am sure that he is completely qualified to do the job. There needs to be some assurance that the people who are appointed are qualified to do the job. In addition, there must be a process by which assurers can be dismissed if they breach confidentiality. That is also dealt with in the Opposition amendments, which would assure people that their concerns about the use of this information for blacklisting and victimisation are taken seriously in the Bill.
I share the concerns about line 28 on page 41, which states that the duty of confidentiality involves taking “all reasonable steps”. That is not acceptable because it is not powerful enough. Amendment 118 would replace those words with “all necessary steps”. We must ensure that any action that is taken goes beyond reasonableness; it must be necessary and effective.
Further down page 41, the circumstances are set out in which a member’s name and address are permitted to be provided. The list includes the member’s consent, but that seems to be overridden by a range of other situations in which the certification officer may provide names and addresses.
Andrew Gwynne
I commend my hon. Friend for the work on blacklisting that he has done in Parliament. Is he as concerned as I am about proposed new section 24ZG(3)(d) to the Labour Relations (Consolidation) Act 1992, which states:
“where it is required for the purposes of the discharge of any of the functions of the assurer”?
That seems to be very wide-ranging.
John McDonnell
I have no idea what that means. It has such a range of interpretation that it gives the assurer the ability to provide information to virtually anyone for any purpose. It will undermine the confidence of workers who have experienced blacklisting or victimisation and workers who are currently at risk if the Bill is passed in this form.
One of the reasons why there may be a disclosure of information is
“where it is required for the purposes of the investigation of crime or criminal proceedings.”
In the real world of industrial relations, many Opposition Members have seen a crime being alleged because of the process of picketing. Because the list includes the investigation of an alleged crime, the certification officer will be able to hand over the names and addresses of pickets who are accused of action that could be construed to be illegal. That will undermine people’s ability to exercise their democratic rights as trade unionists by undertaking picketing or other forms of industrial action.
I am anxious about the whole clause. It flies in the face of the assurances that have been given in the House that blacklisting and victimisation will be addressed. People have been blacklisted or victimised simply because they are trade unionists or health and safety representatives. On the blacklist that we discovered, names had been misinterpreted and the wrong people had been identified. Some people had been blacklisted simply because they had undertaken political activities unrelated to trade union activities.
The Opposition amendments simply try to gain the assurance that a duty of confidentiality will be placed on the officers who will implement the new regime. I do not find that to be excessive. It will not introduce burdens on trade unions, the certification officer or the assurer. It will simply clarify their legal duties. One of their legal duties must be to protect the information that they are inspecting or, to use the new verb, “assuring” as a result of this legislation.
I urge the Government to accept the amendments. I hope they do, but even if they cannot, they can at least take the spirit of what Opposition Members have said and return with their own amendments to ensure that there is a duty of confidentiality on the officers concerned; that the qualifications can be properly examined when the assurer is appointed; that assurers can be dismissed if there is a breakdown of confidentiality; and that there is absolute security for the information the assurer guards and controls on behalf of the trade union.
Jo Swinson
As I recall it, the hon. Member for Wansbeck was talking about whether he would be in a position to do that where he had been elected within a union. I have made it clear that that would not be appropriate for union officers, because they need to be independent of the process. What is clear is that there will be an order published about assurers, which I will come on to shortly, and hopefully that will answer the question. We need to look at the terms of the order as it develops—it may well be that the hon. Gentleman has a promising career ahead of him as an assurer. It will be up to unions themselves to define the assurer’s contract terms, subject to minimum requirements, to ensure that they fit the nature of the organisation and are not disproportionately costly.
Various Members have raised concerns about data protection, and about an assurer’s access to membership details could risk breaching data protection rules. I hope to provide reassurance to Members that that concern is unfounded, but I recognise that it has been expressed. The assurer will be bound by current data protection rules, as well as by the additional confidentiality provisions set out in clause 37. The assurer owes a duty of confidentiality to the trade union, which is built into the appointment. They must not disclose the names and addresses of members, except where the member consents, where it is required for the purposes of their functions under the Act, or for criminal proceedings. They must also take all reasonable steps to ensure that there is no prohibited disclosure by other parties.
A certification officer and any inspector appointed by the certification officer have access to membership data, but that is immediately limited to the performance of their functions in relation to the register and the audit requirements under TULCRA—the Trade Union and Labour Relations (Consolidation) Act 1992. It cannot be used for any other purpose. The duty concerns just the register of members’ names and addresses under section 24 of the 1992 Act. Other information should not generally need to be provided; the minimum amount only will be needed. Information is, of course, sensitive personal data. We absolutely accept that people’s names and addresses—often their home addresses—and whether they are members of a union are sensitive data. That will, therefore, fall under the protection of existing data protection rules. That will apply to any other personal data accessed under the powers in this Bill.
The hon. Member for Edinburgh South (Ian Murray) raised the ability of the certification officer to provide documents and a test of what a good reason would be. The certification officer will be able only to request documents that are relevant and where there is good reason to do so—a consistent test that is used elsewhere under the TULCRA legislation. For example, it is already applied by the certification officer for investigations of financial affairs.
It is important to note that there is no evidence of a problem with how the certification officer has exercised discretion. Indeed, respondents to the targeted consultation we undertook over the summer said that they did not feel there was necessarily a problem. I do not believe that hon. Members are necessarily making the charge that they would be concerned about how individuals undertook their duties. However, it is important to note that the test is available. If a union believes that the certification officer is overstepping their remit, it can withhold the information, and, ultimately, there is a right of appeal if there is an order made by the certification officer requiring production of the information.
Andrew Gwynne
Earlier, the hon. Lady mentioned that the details would be provided in an order and that they would be subject to the minimum requirements for the post of assurer. Will she explain what those minimum requirements are, so that we can assess how to vote? Also, how will she militate against potential conflicts of interest between the assurer and other clients they might have?
Jo Swinson
I will come on to the issues relating to the assurer. I would like to deal with data protection sensitivity and turn to the issue of blacklisting before I come back to the specifics about the assurer, if the hon. Gentleman will bear with me.
The hon. Member for Edinburgh South was asked by the hon. Member for Birmingham, Selly Oak (Steve McCabe) about penalties if there is a breach of data protection or confidentiality issues. Various protections are in place. The assurer would have to comply with the Data Protection Act. If they did not do so, they would be in breach of their contracts, so as well as being removed, the union could sue them. However, the assurer would also be a data controller, so the Information Commissioner could take action. The Information Commissioner has significant powers under the Data Protection Act, which include serving an enforcement notice setting out action that the data controller must take and—where required to address a serious contravention of the duty—imposing a fine of up to £500,000. Failing to comply with an enforcement notice by the Information Commissioner is also an offence, so there are significant protections in place.
The hon. Member for Hayes and Harlington (John McDonnell) and others raised the important issue of blacklisting. Let me reiterate on the record—my right hon. Friend the Secretary of State and I have said this on various occasions in the House—that the blacklisting of trade union members is unacceptable and illegal. Following an investigation, of which the Committee will be aware, that uncovered the Consulting Association’s blacklist, the law was strengthened at the end of the previous Parliament by the Employment Relations Act 1999 (Blacklists) Regulations 2010. That was also when the maximum fine for a breach of data protection rules was increased to £500,000.
The Committee will also be aware that the Select Committee on Scottish Affairs has been conducting an inquiry into this issue. In July, the Committee contacted the Secretary of State to say that it had new information that blacklisting continues. We have always encouraged anyone with evidence of blacklisting to come forward so that we can investigate. The Scottish Affairs Committee is the first to get in touch formally to say that it possesses new information. We are grateful to the Committee for passing that information to the Department. We have referred it to the Information Commissioner’s Office, as the appropriate body to investigate any breaches of the Data Protection Act. I understand that the office is requesting more information from the Committee, so that it can examine it and investigate. My right hon. Friend and I will of course continue to take a close interest in this matter. If any evidence of blacklisting is found, the perpetrators must feel the full force of the law.
Let me turn to the amendments in this group. Amendment 107 would make the assurer owe a duty of confidentiality to the union and its members—this deals with the concerns raised about data protection. I hope that the protections I have outlined will reassure hon. Members about compliance with the existing legislation, even though it is not explicitly mentioned in part 3—the convention is to keep legislation concise and not to repeat existing legal requirements. I am happy to reassure the Committee and put it firmly on the record that compliance with the Data Protection Act will be necessary for anyone who handles sensitive data.
Amendment 108 would require the Secretary of State to set out eligibility criteria for the assurer—this goes to the point about the future career ambitions of the hon. Member for Wansbeck—along with what qualifications, status and experience assurers must have. Our approach will be the same as for independent scrutineers of trade union ballots and elections. It is important that the assurer has widespread credibility with unions, their members and the public. The order will say which organisations are eligible or list the criteria that must be met. We imagine that assurers will probably be recognised professionals, such as solicitors, auditors or independent scrutineers. The responses to our targeted consultation over the summer supported that approach. I am not sure whether the hon. Gentleman falls into any of those categories, but he might be interested to know that we will need to consult on the content of the order, and I give the Committee an assurance that we will do so. There will therefore be an opportunity—this is important—for unions, their members and the public, as well as the hon. Gentleman, to comment.
Jo Swinson
I gave some examples of where there might be a conflict of interest, such as where somebody was already an officer of the union, which would not be appropriate, as they would need to be independent. However, as I have set out, there will be a process in the order for outlining eligibility.
Jo Swinson
I have already given way to the hon. Gentleman and I want to make some progress.
Amendment 110 would mean that unions do not have to set out in their rules how they will appoint and remove an assurer. Not only is the amendment unnecessary, but it is more prescriptive than what we have set out in the Bill. Our intention is to allow unions more discretion over when they remove or appoint an assurer.
Amendment 109 would prevent the appointment or reappointment of an assurer when there was a breach of confidentiality or a breach of their statutory duties or terms of appointment, or when there were reasonable circumstances not to reappoint. Of course it is important that the assurer should take their duty of confidentiality seriously, but the amendments are not necessary to achieve that aim. We can trust the unions to do this, and they will be able to pass a resolution to get rid of an assurer for any reason. It will be up to the unions to decide. The relationship between the assurer and the union is rightly one for the union to define. We have added a minimum level of protection in the Bill to ensure that an assurer is not reappointed if they are not qualified, are incapacitated or have decided that they do not wish to be reappointed. In general, however, it is better that the union should be responsible for the terms of the relationship with the assurer. That will allow much more flexibility to deal with the individual circumstances of each union.
Amendment 111 would expect the assurer to give an opinion as to whether the union had complied with the duty to keep its membership register accurate and up to date. This would replace the current proposal to give an opinion on whether the union’s system for compiling the register was satisfactory for that purpose. What is being proposed in the amendment would be far more costly and onerous to the union. In some cases, the assurer might conclude that they needed to carry out a thorough audit of all the content of the register. We believe that a systems check is more proportionate, and that is what we are setting out.
Amendment 112 has been mentioned by the hon. Member for Sunderland Central (Julie Elliott) and others. It would add an additional requirement to the membership audit certificate. This would be to include the assurer’s opinion as to whether the employer had shared “timely and accurate details” with the union. The hon. Lady took the view that bad employers would try to prevent unions from having the right information. As I mentioned earlier, there is already statutory protection to ensure that unions cannot be held accountable for information that they do not possess, or for inaccuracies that are beyond their control. It is also important to note that we will produce guidance for employers, to help them to assist unions to comply. It is important that employers should comply with their requirement to provide information to unions, and we believe that that additional guidance will be helpful in that regard.
Amendment 166 seeks to assist the assurer by requiring the Secretary of State to produce guidance and define in statute what is “satisfactory” and “not satisfactory”. The amendment is either necessary or desirable. What is satisfactory or not will vary from one union to another, and a one-size-fits-all definition would be onerous for some and ineffective for others. Our approach is to retain flexibility. Assurers will be professionals, and it is reasonable to rely on their professional judgment and ability to apply these phrases appropriately. Ultimately, the membership audit certificate represents only the opinion of the assurer. It is only the certification officer who has the power to make a determination.
Amendment 116 would mean that the union’s assurer was entitled to require only the union’s data controller to provide the necessary information. This would be instead of being able to approach
“the union’s officers, or the officers of any of its branches or sections”,
as set out in the Bill. That could result in the assurer being unable to ask questions of the right people. They should obviously be able to question those who handle sensitive membership data, but they should also be able to question others who understand how those data are kept up to date. In some cases, that might be one and the same individual, but in others it might not be. So the form of words that we have used in the Bill, which is also used throughout the Trade Union and Labour Relations (Consolidation) Act, is much better.
Amendment 115 seems to suggest that a union should not be penalised for errors when the correct details are held by the employer. I have already set out why existing legislation renders such an amendment unnecessary. There is already a “reasonably practicable” test, and we will be issuing improved guidance. Amendment 117 would mean that the union could supply information to the assurer to help them to carry out their role only if it did not conflict with the union’s responsibility to comply with data protection requirements. I have already outlined the safeguards relating to data protection. The assurer will have to be able to see the register if they are to carry out their responsibilities effectively, and the amendment could prevent that from happening.
Amendment 119 also seeks further reassurance on the Data Protection Act, but that is unnecessary because it will already apply. Amendments 118 and 128 propose replacing the words “all reasonable steps” with “all steps necessary”. I must ask the hon. Member for Edinburgh South what steps he can imagine that are necessary yet unreasonable. Is he really suggesting that we want necessary and unreasonable steps to be taken?
Amendment 120 would change the disclosure requirements, but I have already set out the safeguards, so the amendment is unnecessary.
I hope that I have been able to reassure the Committee on a few points of concern. These measures will not present an unreasonable burden on unions and the safeguards in place against the misuse of data are more than adequate. This clause is necessary to provide independent assurance of the maintenance of large and complex registers. Clause 37 should stand part of the Bill, and I urge the hon. Member for Edinburgh South not to press his amendments.