Baroness Hayter of Kentish Town
Main Page: Baroness Hayter of Kentish Town (Labour - Life peer)Trade Union Bill
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Baroness Hayter of Kentish Town (Lab)
My Lords, Amendment 81 deals with which organisations will be caught by the facility time provisions, as the Bill is extremely wide on this at present. According to new Section 172A(9) in Clause 12, it is any public authority, including an organisation which,
“has functions of a public nature and is funded wholly or partly from public funds”.
That does not just cover the police, health service, universities, schools, libraries, the BBC, dental surgeries and GP surgeries—doctors, nurses, receptionists and everyone—but potentially, despite the letter received yesterday from the Minister, social care and retirement homes, hospices, charities, bus companies and, on this definition, the Royal Mail and the Post Office, despite what was said earlier today. This is what the Bill says. It will include some 21,000 bodies, according to table 11 of the impact assessment, of which all but 1,000 are schools.
How are these bodies to be defined? Yesterday, the Minister wrote to my noble friend Lord Mendelsohn saying that, despite the wording of the Bill, the facility time requirements will cover only bodies defined by the ONS as being public bodies. This would therefore include housing associations, the BBC, schools, universities, the Pensions Regulator, NEST and Magnox. The latter is already caught by the exit cap in the Enterprise Bill, so now not only will employees lose some of their exit payments but they could lose the right to lay and union representation in negotiating redundancy plans and terms.
If the Government really do mean ONS-defined public authorities, how does that tally with the current wording of the Bill? It says:
“The regulations may provide, in relation to a body … that is not a public authority but has functions of a public nature and is funded wholly or partly from public funds, that the person is to be treated as a public authority for the purposes of subsection (2)”.
That does not mean just ONS-defined bodies but specifically those which are not a public authority but which have functions “of a public nature” and are funded “wholly or partly” from public funds. That is clearly ONS-plus.
I am afraid the Minister’s response on 2 February to the noble Baroness, Lady Fookes, the chair of the Delegated Powers and Regulatory Reform Committee—that,
“it has never been the Government’s intention to capture private or voluntary sector providers of contracted out public services or charitable organisations”—
simply does not hold water. That is not what the clause says, despite the Government having had plenty of time to amend the wording. Hence we have tabled Amendment 82A to be absolutely certain that charities cannot be included. Amendment 82B, in the name of my noble friend Lord Stevenson, would exclude cultural bodies, which are anyway only partially publicly funded.
In her letter, the Minister confirmed that free schools and academies—which, yes, were meant to have been promised the freedom to run themselves—would be included in this new bit of government regulation. Local authority and maintained schools of course are already required, as we heard earlier, to publish information on facility time, so I will ask her the same question that my noble friend Lord Watson asked. Can we therefore assume that the Government are now proposing that the proprietors of academies and free schools will be subject to the same level of disclosure and scrutiny, not just on facility time but on other areas of expenditure? If not, it is extraordinary that the only thing they would have to go public on is the amount of facility time, rather than any other decision they take. Or is that the only bit of transparency that the Government are going to ask academies to face?
Amendment 81 would remove new Section 172A(9), which is undoubtedly a catch-all and a dangerous power which has no place in the Bill, extending as it does government interference into independent, non-government organisations. Amendment 82 makes a similar point because, by including in the Bill organisations which are only partly funded by public money, the Government are laying extra rules on the activities of independent, privately funded bodies with their own governance structures. That goes well beyond public bodies or public authorities in the sense of local authorities and health authorities.
Indeed, we are mystified as to what organisations the provision covers and what “partly” means. Does it mean a grant covering perhaps 5% of an organisation’s funding, even if it is not defined as a public authority by the ONS? Perhaps the Minister could detail some examples of what organisations might be covered which are only partially funded by public money. It is unacceptable for the Government potentially to cap facility time in a body that they only partially fund, so we seek to exclude those bodies altogether.
The important question is: what on earth does this cover? It is no good just having some earlier minor amendments from the Government that mean that we can now put different categories into statutory instruments, when we are not clear whether the definition is just ONS-defined public authorities, public authorities or what it says in the Bill—any other organisation carrying out a public function which receives some or all of its money from public funds. I beg to move.
The Deputy Chairman of Committees (Baroness Fookes) (Con)
My Lords, I point out that if Amendment 81 were to be agreed, I could not call Amendments 82 to 82B inclusive by reason of pre-emption.
Baroness Neville-Rolfe
I thank the noble Lord for his comments. As part of my checking up on this, I will look at that point, but my recollection is that, as he says, we are trying to get housing associations out of being public bodies, so they should not be covered for the reasons that I have already stated.
Baroness Hayter of Kentish Town
They could still be covered. New Clause 172A(9) talked about something that is not a public body by whatever definition but nevertheless is,
“funded wholly or partly from public funds”,
and,
“has functions of a public nature”.
If, as an ALMO, the housing association has taken over social housing and receives public funds, the housing association could escape. However, if that happens—of course we still do not know for sure that they will come out from the ONS, but let us assume that they do—it still fulfils the other criterion, so the housing association would still be covered.
Baroness Neville-Rolfe
It is late and I do not want to dispute the noble Baroness’s very clear logic. As I have already said, I will go away and look at this point and write. I thank the noble Lord, Lord Balfe, for his suggestion about letters. The letter was certainly meant to be sent to people who would be interested, and I can only apologise that it did not get to him today. I shall ensure that he sees it and that the follow-up letter that I have promised reaches all the appropriate nooks and crannies of the Chamber.
Amendments 82A and 82B seek to exclude charities and cultural and artistic institutions. Unfortunately, these are not terms that have definitively clear boundaries. Some publicly funded schools may have charitable status. This does not mean that the facility time of their employees is not being funded by the taxpayer, in just the same way as a school that is not classified as a charity. Equally, the Government fund institutions such as those that the noble Lord, Lord Stevenson, mentioned —arts institutions, the Tate, the British Library and the British Museum—and we are proud to do so. In such bigger examples, facility time is of course funded by the taxpayer as it is in the NHS or the Civil Service. It should therefore be held to the same level of accountability. However, I am quite happy to have a meeting to discuss it to see if we can find a way through that, although I need to establish the broad principles, as I sought to do in my letter.
Amendments 81, 82, 82A and 82B all reflect similar concerns as to the sort of employers who could be covered by the regulations. I hope that noble Lords will be reassured that we are trying to capture those employers who should be accountable and leave out those who should not. However, I am conscious that we will need to come back to this, I hope in a letter or in a meeting. In the mean time, I ask the noble Baroness to withdraw the amendment.
Baroness Hayter of Kentish Town
I thank the Minister and I hope that I heard correctly that she will review this, particularly new subsection (9). At the moment it is an absolute muddle. All that the amendments she put forward earlier do is pick and mix, but again, it would come only by statutory instrument—we would not be able to say whether we agreed with that. However, pharmacies would be covered under this, because the more than 50 employees would not be in each particular pharmacy but would be conglomerate, and they undoubtedly get public money. I still do not understand how a retail post office would not be covered by this. I am delighted that public schools might be covered; they are charities and get some public money in odd areas—this could be the first bit of regulation on that. The Minister said that it was not the intention to cover private companies and charities, but that is what the Bill says. A retirement home which is almost wholly funded by public money, albeit with top-up from some fee-paying residents, and which is completely independent, either run by a social care company or by a charity, would be covered by this. Therefore it is important that we have absolute clarity. I will be very happy to have a dialogue before Report; ideally, the Government could perhaps bring forward their own amendment to meet the points we are raising. However, for the moment, I beg leave to withdraw the amendment.
“(2A) No regulation may be made under subsection (1) which has the effect of altering, in respect of any of the matters to which the reserve powers may be directed, any provision of a contract of employment or a collective agreement, or of limiting an employer’s discretion as to the contents of contracts of employment or collective agreements to which the employer is a party.”
Baroness Hayter of Kentish Town
My Lords, this amendment, tabled in my name and that of my noble friends Lord Mendelsohn and Lord Collins, comes to the crunch that we have been leading up to in our discussions on Clause 12. Clause 13 possibly undermines the rights of working people to be represented at work via a reserve power that allows Ministers—not employers, but government Ministers—to cap the amount of time that union reps can spend on employer-funded trade union work, regardless of the needs of the organisation, existing collective agreements, individual contracts of employment or even the wishes of the employing organisation. So not only does Clause 13 give Ministers a blank cheque, as there is no indication of whether they would cap facility time at one day, 52 days or 104 days a year, but there is no clarity as to what circumstances would give rise to the introduction of this power. Would it be because a general election was coming up? Would it be because a new Secretary of State wanted to burnish their credentials? It is absolutely unclear what would trigger it.
Despite the earlier government amendments, we have no indication of whether if a whole category of employers was to be covered—such as post offices, hospices or care homes—this would involve the Minister making a specific case for each of those sectors. Would the provision be time-limited? Would it be for ever or just to the end of the Parliament? Would it follow any consultation, either with the relevant employers or, indeed, with their trade unions? It would simply allow—and I have to use the word—dictatorial government with a sweep of the pen, given that we are told we must not vote against statutory instruments in this House, to interfere with hundreds of workplaces at the whim of a Minister, limiting lay officials’ facilities in an arm’s-length or, possibly, independent organisation. I do not think anyone accepts that this will do.
The Equality and Human Rights Commission has considered Clause 13’s open-ended powers to make this wide-ranging amendment to primary legislation and said that it could,
“be used to introduce disproportionate interference to freedom of association rights under Article 11”,
of the ECHR. It continued:
“The power to impose contractual changes could also amount to an unjustified and disproportionate restriction of the right to respect for possessions under Article 1, Protocol 1”.
Imposing these new restrictions on rights for union reps is effectively rewriting collective agreements and contracts of employment which have been voluntarily agreed by unions and employers, and is in contradiction of other legislative rights. It undermines Section 168 of the Trade Union and Labour Relations (Consolidation) Act 1992—I am not sure whether that was one from the noble Lord, Lord King—which allows for learning reps. It also undermines Section 10 of the Employment Relations Act 1999, which gives individuals the right to be accompanied—nearly always, of course, by lay reps—in grievance and disciplinary hearings. Furthermore, it appears to break health and safety duties, as we have heard already, under regulations under Section 2 of the Health and Safety at Work etc. Act 1974.
Clause 13 allows the Government to use as yet unseen secondary legislation to put through restrictions or, indeed, to repeal rights contained in primary legislation. The cap could also conflict with EU law, which protects the rights of health and safety reps to paid time off for their training, as well as their duties, and the rights of trade union reps during consultation on collective redundancies and outsourcing under TUPE rights, and information and consultation rights. Furthermore, as I have said, by introducing such a cap, the Government would be breaking existing voluntary agreements between employers and their workforce. In the case of schools, many local facility agreements have been negotiated on the basis of the Burgundy Book agreement on facilities for reps of recognised teachers’ associations. Surely, any proposed changes to facility time agreements, including the funding of them, would have to be the subject of negotiations between the employer and unions. It is really not something for an outside Minister to decide.
Baroness Neville-Rolfe
I know what the noble Lord has said. I think that I have probably said as much as I can on this issue this evening. I shall not seek to weary the House with further detail on the final amendments. The logic is that the cap should apply to all types of facility time, whatever legislation the rights are granted under and whatever category under which they fall. In the public sector, where the employer pays for their employee to take time off to undertake facility time, it is in no way less of a cost to the taxpayer however the facility time is categorised and however important it is.
We have had a good discussion today, but I am not persuaded by the tenor of the argument. I ask the noble Baroness to withdraw her amendment this evening.
Baroness Hayter of Kentish Town
Let us just get one thing straight: this is not a taxpayer subsidy. The taxpayer pays for holiday pay as well. Are we going to have a government Minister talking about that with regard to all those organisations, not just local government —we have already agreed that it may be charities or all sorts of other functions? They decide their own holiday pay, and the taxpayer pays for that, but facility time is somehow really different.
I shall not go through all the contributions, but I want to say three things. First, on the affirmative procedure, Parliament knows best—I think it was the noble Lord, Lord King, who mentioned that. But the problem is, as the Minister says, that this legislation went through the Commons without any difficulty, which is how an affirmative resolution would go through the Commons. When the legislation comes here, the only place where we can say stop, we have the noble Lord, Lord Strathclyde, saying that we must not overturn a statutory instrument—“I’ll do another report, we’ll clip your wings or we’ll put in another 100 Tory Peers”. What was the other thing he was going to do? Oh yes, he might suspend us, give us a permanent holiday. The idea that our safeguard is that we can overturn a statutory instrument here is no safeguard.
The Minister has said that this is a provision of last resort, but she has still not explained the criteria on which that last resort could be taken. The example given by the noble Lord, Lord King, is really frightening —if one thing has gone bad in one place, which could be a care home, or something, we will have the Dangerous Dogs Act again. Because something is really bad in one place and the public have got to know about it, therefore we will have a Minister saying that we have to do something about it so let us have a statutory instrument quickly, and a whole category will be caught because of one example of something going wrong. The real issue is whether it is about, as the noble Lord, Lord King, says, one or two or three examples of where this is going wrong, or is it some other reason that we have not heard from the Minister? What criteria would bring in this power of last resort? This is a question for management and local authorities, or whoever the employer will be—Magnox, or all those other organisations that we have been through. It is really not for Ministers. We will return to this one, but in the mean time I beg leave to withdraw the amendment.