Brandon Lewis
Main Page: Brandon Lewis (Conservative - Great Yarmouth)
Mr Nuttall
My hon. Friend is right, because rather than deal with the matters raised in the judgment, such as the definition of “accidental”, the Bill seeks to introduce a novel concept of whether there has been “substantial compliance” with something.
I shall now deal with the next subsection, if Madam Deputy Speaker will allow me. Subsection (5) deals with the burden of proof. The existing legislation under section 232B of the 1992 Act contains no subsection (5), so this would be a new insertion into the original provision. Subsection (5) states:
“In any proceedings in which reliance is placed on this section, any failure to comply with a provision mentioned in subsection (2) is to be treated as meeting the terms of subsection (1)(b) unless the contrary is proved.”
In simple terms, that means that the burden of proof is being placed completely on the employer, who will have to prove this novel concept of what constitutes “substantial compliance”. As has been said this morning, that arrangement is entirely the wrong way round. It is and has always been incumbent on the trade unions to show that they are complying with the requirements of the law, because it, unusually, exempts them from the liabilities that otherwise exist under British law.
Brandon Lewis (Great Yarmouth) (Con)
Does my hon. Friend agree that the problem with having the onus on the companies and the employers is that that imposes a huge responsibility and potential cost on them in tough economic times, because they will have to try to prove something and get information to which they do not have easy access? That is why the onus in the Bill is completely the wrong way round and why the onus should remain on the unions.
Mr Nuttall
My hon. Friend is absolutely right about that point, although I had not thought of it, because employers face having to start delving into matters into which they will probably never have delved and that could be, as he says, a very expensive and time-consuming business. It would be far better for employers to get on and deal with the job that they are there to do, which is to try to run their businesses and companies profitably.
Subsection (5) deals with the burden of proof and makes it the job of the employer to prove that there has been a failure of “substantial compliance”; it puts the burden of proof on the employer. I submit that it is the job of the trade union to prove that it has complied with the rules. I sometimes refer to this as the 51:49 rule, because proving something on the civil standard of the balance of probability means that on a 51:49 balance it is more likely than not to have occurred. I believe that I am right in saying that we were told during the opening remarks of the hon. Member for Hayes and Harlington that proving this was not difficult, but if that is the case, it is not difficult for the trade unions to prove that they have substantially complied with whatever provision they are alleged not to have complied with. As we have said, what does or does not constitute substantial compliance is a matter of great debate. For example, has there been substantial compliance where a notice has been sent but not in the right form or where it has been partially or badly photocopied?
Mr Nuttall
My hon. Friend is quite right. It is slipped in at the very end, in the last couple of lines of a clause that might otherwise be uncontroversial and remain unconsidered. I might have overlooked it, were it not for the fact that in parentheses, it says
“or proposed to take place”.
That changes the whole ballpark of the meaning of the clause. One could understand if action were actually taking place—that would be quite understandable, and we can see whether someone is on strike or not—but where there is a requirement to consider whether it is proposed to take place, who makes the proposal? Is it someone who has proposed action in a branch meeting? Should it be proposed at a national level? Should there have been a ballot? Should there have been notification? How far down the line does it have to have gone before it is regarded as an proposed action? What happens if one union member has proposed it to his mate? Is that regarded as a proposal for action? The whole Bill is a minefield; it is a treasure trove for lawyers and I submit that in its current form it will do nothing to help trade unions and industrial relations in this country.
Before we go further, we should consider the groups that will be affected by this Bill. Principally, four groups will be affected. The first group is the trade union members. Some members might have their views excluded because, if one assumes that the thrust of the Bill is to make it easier for mistakes to be made—that is what we are talking about; we are making it easier for people to be missed out—there will be a greater likelihood that ordinary trade union members will not have their views taken into account. They will quite rightly ask why they are being denied a say, and they are certainly a group that we should have in the forefront of our minds when we are deliberating on which way we should vote on this Bill.
The second group is the trade union members who are consulted. Regardless of whether they are consulted in support of or against any particular proposed industrial action, there is a real danger that their hard-earned moneys, which are paid over as union subscriptions and union dues, will be wasted and lost in the pockets of the lawyers and in payment of court fees while day after day is spent debating in the courts the merits and demerits of the Bill.
The third group is the employers. Where is the line to be drawn? The law already allows small accidental failures to be disregarded and it is reasonable to assume that the Bill is seeking to relax those provisions. It does prompt the question of what degree of error is now to be disregarded. I would ask the House to accept that as the current description is “small”, the proposed disregard must by definition be a level higher than “small”. The question is what degree of disregard is greater than “small”. Is it, for example, “quite small”, but not “small”? Is it “little”, but not “small”? Is it “modest”, but not “small”? Perhaps it is not “quite small”, “little” or “modest”, but in fact—I suspect that this is where the law is intended to go—quite a major failure. We are moving towards “substantial compliance” allowing for quite major failures of the law and allowing fairly major breaches of the law to be disregarded. That cannot be right.
Brandon Lewis
A couple of issues come to mind. Does my hon. Friend agree that as well as moving employers into a position where the onus would be on them, so they could be seen as aggravating the situation by doing research into any potential disregards, there is also the chance—as he has said—that although what is currently seen as being small is hard to define, if it is in law it has the ability to grow even once it has been refined? What we see as small in one case might become larger and larger as time goes on. The value of members who are unable to use their vote and are not given the opportunity because of an accident or mistake is devalued, rather like constituencies in which we have more people with less value to their vote.
Mr Nuttall
My hon. Friend makes a reasonable point. One difficulty in defining a small or minor error is the size of the electorate. Something that could be regarded as a small error that could be safely disregarded in one trade union would not be appropriate as a matter to be disregarded in another trade union. Even when a conclusion has been reached in proceedings that might at first sight result in apparent settlement of the law, that is not necessarily the case if the union involved is the size of Unite rather than the size of the garment workers’ union, which might have nowhere near the same number of members. This is an important issue that will affect employers and the law will not be clear even after the Bill is passed.