Charlie Elphicke
Main Page: Charlie Elphicke (Independent - Dover)Lawful Industrial Action (Minor Errors) Bill
Charlie Elphicke Excerpts
Mr Nuttall
My hon. Friend is absolutely right. I was about to come on to the history of how we arrived at where we are today, albeit briefly as I do not want to go too far back. It is important to remember that a couple of hundred years ago it was completely illegal for workers to join together at all. We have now happily moved on, but there is perhaps a case for tightening trade union legislation, and I believe that a number of other matters could be more usefully included in the Bill. I assume that people in the trade union movement want to see it prosper, go forward and make itself ready for the 21st century.
Charlie Elphicke (Dover) (Con)
Does my hon. Friend think that now is the time to be passing legislation to make it easier to strike, when we need to pull ourselves out of this massive recession the country has had to face, thanks to the shambolic economic policies of the Labour Government? At another time in the future, when the country is perhaps doing better—
Charlie Elphicke
It is not nonsense; it is accurate. It was Labour Members who caused the recession and now they are trying to make it easier to strike. That is not a fiscally responsible thing to do.
Mr Nuttall
I thank my hon. Friend for that intervention, which highlights the real danger. He strikes to the heart of the matter, because as the nation tries to emerge from the recession, we need to do everything we can to put dynamism back into British business. The last thing that we want is a return to the dark days of the 1970s, and the problems of the 1980s, when the news headlines were dominated by industrial unrest and strife. If those days returned, the economic competitiveness of British business would be damaged, and that would be good neither for this country nor for trade unions in general.
Mr Nuttall
I certainly will, Madam Deputy Speaker. To be fair, I think that I have already dealt with my hon. Friend’s point. I agree that there is a danger that that will happen if the Bill is allowed to proceed in its current form. However, I think it relevant to point out briefly—very briefly, and for the good of the trade union movement—that trade union membership has halved since the 1980s, from 13 million to 6.5 million. I fear that if the Bill were allowed to proceed and a further period of industrial unrest were to follow, there could well be a further decline, perhaps—although it is not for me to say—a terminal decline in union membership.
Let me now do what you have rightly asked me to do, Madam Deputy Speaker, and turn to the detail of the Bill.
Charlie Elphicke
Given that the Court of Appeal reversed the injunction in the British Airways case, does my hon. Friend think that the Bill is necessary at all?
Mr Nuttall
No, I do not. We have not yet had time to see the details of the Court of Appeal’s decision in the case of British Airways plc v. Unite. The court’s judgment, which was quoted by the hon. Member for Hayes and Harlington, was quite clear in regard to the effectiveness of the law.
There has been such a long line of cases of this kind, and it is interesting to note that time and again they have involved the same union: Unite. One would think that by now Unite, and the people whom it employs to conduct the ballots, would have learned how to do it, but apparently not. The Master of the Rolls recognised that. Delivering his dissenting judgment in the Court of Appeal, he said that he agreed with Mr Justice McCombe, who had delivered the earlier judgment in the Queen’s bench division. He said that he did
“not consider that the Union has a good prospect of establishing at trial that it complied with section 231. On the contrary, I would not regard its prospects as promising.”
He reached the conclusion that
“the requirements of section 231 seem…at least as at present advised, to be unnecessarily prescriptive and strict, particularly insofar as they can be relied on by the employer and particularly in a case such as this… Having fallen foul of the technical rules of the 1992 Act in a ballot a few months earlier, the Union might have been expected to take particular care over complying with all those rules in what was effectively a rerun of that ballot.”
So there we have it: the Master of the Rolls saying in terms that the union had had one chance, and had got it wrong. A few months later it did effectively the same thing, and got it wrong again. My hon. Friend the Member for Dover (Charlie Elphicke) is quite right.
Let me now return to the detail of clause 1, which seeks to amend section 232B of the Trade Union and Labour Relations (Consolidation) Act 1992. Subsection (2) would add the words “or notice”. Previously compliance had been required only if a ballot had been held, but sections 226 to 230 require notice to be given to the employer as well. Section 226A requires the notice to be given
“not later than the seventh day before the opening day of the ballot”,
and to be
“received by every person who it is reasonable for the union to believe”
should receive it.
In considering whether this is a sensible provision, I ask myself why notice should not be given to all the other people who would be affected. I would consider it sensible for the Bill to require it to be given not just to the employer, but to others who would be affected by the union’s actions, such as post office and railway users’ groups. Section 226 states that it would help the employer to be able to make plans and bring information to the attention of some of his employees, because other employees might be seriously affected if half their colleagues walked out on strike. It is entirely right that there should be compliance—full compliance—with the requirement for notice to be given.
Mr Nuttall
Indeed. The time is needed so that other people—not just other employees—can be notified. Deliveries may need to be stopped, and customers may be waiting for those deliveries.
There is a strong argument for increasing the notice period. Section 226A(1)(a) requires only seven days’ notice, which is not very long. It will include a weekend, so there will be only five working days. That is not a long time in which to make all the necessary preparations, especially when the company involved has never experienced a strike before and does not know what to do. There will be a lot to be done in those seven days. There is a lot of merit in the argument that the period should be extended to 14 or 28 days, so that people know where they stand if a union starts to take industrial action.
Charlie Elphicke
My understanding—correct me if I am wrong—is that the substantial compliance provision would allow for exemption from section 234A of the 1992 Act, which deals with the notice to employers of industrial action. Does my hon. Friend think that substantial compliance might be a notice sent in the post but not delivered? Is that substantial compliance or not? Should not an employer receive actual notice and have some certainty about that?
Mr Nuttall
My hon. Friend makes an interesting point, which we will look at in more detail when I look at the next paragraph of the subsection. The problem with the Bill is that it not only introduces the novel concept of substantial compliance, but extends the scope of the 1992 Act to cover not just the ballot but the notice provision. Therefore, it is doing two things at the same time. Incidentally, the provision also extends the number of sections to which the exemption applies, which we will look at later.
May I move on to subsection (1)(b) of section 232B, which states that the failure will be disregarded if
“the failure is accidental and on a scale which is unlikely to affect the result of the ballot”.
It seems that, when the 1992 Act was amended, the then Labour Government knew exactly what they were doing. They were providing for minor errors to be discounted. In section 232B, they specifically allowed for a failure which is
“accidental and on a scale which is unlikely to affect the result of the ballot or, as the case may be, the failures are accidental and taken together are on a scale which is unlikely to affect the result of the ballot”.
That seems to be straightforward and simple to understand.
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?
Charlie Elphicke
Will not the reversal of the burden of proof and the introduction of this wholly uncertain new test be very counter-productive, because we have such strong and well-understood case law and precedent in this area that this approach might damage the position of trade unions?
Mr Nuttall
There is a real danger of that. One of the reasons why it would be wrong for us to pass this Bill in its current form is that it would damage the standing of the trade unions. There is a real risk that they will find it more difficult to recruit new members if they are seen to be moving back to the 1970s, and if there is such a return, there is a real risk that our economic competitiveness will be damaged. Before I deal with which groups might be affected by this measure—it is important that we examine that and consider who will be affected outside this House if the Bill is allowed to pass into law—I shall address the requirements of subsection (5). Placing the burden of proof on the employer would be a major change and such a provision was not in the previous legislation. I have heard no good reason this morning why it would be a sensible way to proceed.
Clause 2, which deals with the short title of the Bill and commencement, is relatively uncontroversial. However, it might be suggested that the period of one month before the legislation comes into force is not sufficient. Clause 2(3) contains a fairly unusual provision. It states:
“This Act applies in relation to industrial action taking place (or proposed to take place) on or after the day on which it comes into force.”
That leaves the definition of what “proposed to take place” means open to some doubt.
Mr Nuttall
My hon. Friend is quite right. That is a point that I did not consider fully—I apologise for that—when going through clause 1(3). There is a risk that that subsection, taken together with subsection (5), will mean that the employer now has the problem—it will be a problem—of bringing before the courts evidence that there has been substantial compliance or non-compliance. All the evidence might well be in the hands of the trade unions, and it will be very difficult for an employer to be able to satisfy a court and, under this Bill, they would have that responsibility. Employers would have that burden placed on them. How on earth can they be expected to fulfil and meet that requirement when the information is in the hands of the trade unions? As my hon. Friend reasonably and rightly says, it would perhaps be more understandable for there to be a provision in the Bill to require the information that the court needed to be handed over so that there could be no doubt that there was a full requirement for the trade unions to hand over to the employer all the relevant information to enable the employer to submit an action to the court. Without that information, the employer would have no reasonable basis on which to instruct their solicitor, and there would be no way for a solicitor to instruct counsel, because they would not have the facts and figures to enable them to make their case.
Charlie Elphicke
My hon. Friend is making a technical and detailed speech, but do I understand his case correctly? Is it that the Bill will create uncertainty for trade unions and employers, and that it will benefit lawyers and result in a massive wodge of cash for them? That is just what happened when the previous Government handed over all coal compensation cases to a bunch of lawyers. Surely that is unacceptable.
Mr Nuttall
My hon. Friend makes a good, reasonable point. The law would not be clarified in any way by the Bill, but there is a real danger, as I have pointed out, that it would take us back to the situation we faced in the 1970s and 1980s. Much of the case law would be made redundant, and we would face yet more legal actions—
Charlie Elphicke (Dover) (Con)
It is not my intention to speak at great length or to filibuster the Bill, but it does need legislative scrutiny. I take issue with the hon. Member for Hayes and Harlington (John McDonnell) who suggests that any desire to scrutinise, examine or otherwise consider this Bill is somehow reprehensible or wrong. After all, the Opposition spend most of their time doing that to Bills, and when we put pressure on them they roundly criticise us for not allowing proper scrutiny. It is right that this House should scrutinise Bills.
The new intake may be new, but we are not naive. We have been sent here to scrutinise legislation and to clean up politics. For many of us in the new intake, the behaviour of previous Parliaments and the disgraceful abuse of expenses were unacceptable, inappropriate and wrong. The disrespect to this House—including its symbols—by Members of the previous Parliament was inexcusable, inappropriate and wrong. To bring before this House a private Member’s Bill that is obviously controversial and highly partisan in nature is an outrageous and disgraceful thing to do. This day should be for legislation that will pass with the support of both sides of the House. It is wholly wrong and inappropriate to waste the time of this House by bringing before it legislation that will divide it. There are other issues that we could have been discussing today on which the House is united and agreed. I say to the hon. Gentleman that it is inappropriate, inexcusable and wholly wrong to do this to this House and the other Members who have legislation to be considered today. We could have been passing useful law today, but I do not think that that will happen. We could have been talking about matters that unite us, but for which there is too little parliamentary time.
I especially condemn the hon. Gentleman because not only does his Bill lack support on this side of the House, but—as we have just heard from the hon. Member for Llanelli (Nia Griffith)—it lacks support on his side of the House.
Mr Nuttall
That point is important. When I made my brief comments, I was not aware of Opposition Front Benchers’ stance, but I am not surprised because the Labour Government introduced the provisions in 1999 and therefore it is to be expected that Labour Front Benchers will stand by what they said. The provisions have stood the test of time and no one has sought to change them before now.
Charlie Elphicke
I agree with my hon. Friend, who makes a powerful point. The Bill is highly technical and seeks to change things that seem technical, but it has the support of no major party in the House. The Bill is also highly controversial in that it seeks to extend the right to strike, but in reality would extend only uncertainty and the getting of money by our legal friends—I used to be one, I regret to confess. We should not proceed in that way.
As a member of the new intake, I was driven to be here today at the request of several constituents, who wrote to me. One letter stated:
“John McDonnell’s Lawful Industrial Action (Minor Errors) Bill will have its Second Reading in the House of Commons on 22 October and I urge you to attend Parliament to ensure this takes place.
The Bill has been introduced in response to a raft of recent cases where courts have ruled”
as we have heard, and I will revert to that shortly. The letter goes on:
“These cases have meant British law now imposes fetters on unions in relation to ballots which are unprecedented in Europe”.
That piqued my interest. I thought that I had to respond to my constituent because, unlike Members of Parliament in former times, I believe in writing back to my constituents and taking an interest in that in which they wish me to take an interest. I am nothing if not a servant of my constituents.
I therefore read the Bill and the explanatory notes. Paragraph 6 of the explanatory notes, which, I believe, the hon. Member for Hayes and Harlington wrote, states:
“A number of recent judicial decisions have revealed a degree of uncertainty on the scope and application of section 232B—for example, in the meaning of ‘accidental’ in subsection (1)(b). The cases have also highlighted, among other things, that the section does not apply to errors, however minor, in the giving of notice under section 226A or 234A. It remains unclear where the burden of proof lies in the event of a dispute as to whether an error involves loss of the protection of section 219.”
Yet, as we have heard in the debate, the Bill creates a new uncertainty. Those provisions of trade union law have been in place for the past two decades and more, and they are well understood by the courts and the legal system.
Will introducing the new test of “substantial compliance” help the unions? I do not think so. It will help create uncertainty and it will help lawyers, but it will not help the trade unions. I say that as someone who is broadly a supporter of trade unions and their legitimate right to use their economic power to withdraw their labour if that is the collective democratic will. As a supporter in principle of the right to strike, I think that the Bill is wrong because it creates a new uncertainty where certainty had been garnered over time. As a supporter of trade unions, I think that the measure’s aim is wrongful; as a supporter of employers, I do not believe that their time should be taken up in instructing lawyers and coping with new uncertainty. They need some certainly for their business planning.
Is the Bill necessary? Paragraph 7 of the explanatory notes states:
“In May 2010 an interim injunction was granted by McCombe J in British Airways plc v. UNITE the Union on the basis of alleged failure to comply with the provisions of section 231 of the 1992 Act regarding information about the result of a ballot. The Court of Appeal… reversed that decision.”
It threw out the injunction. The explanatory notes continue:
“Smith LJ stated that ‘it appears to me very likely that the judge at trial would hold that there had been substantial compliance’”.
The explanatory notes cite a case as the mischief that necessitated the Bill, when it actually proves the opposite. Paragraph 7 goes on to say that in paragraph 149 of the judgment, Lord Justice Smith
“observed: ‘I consider that the policy of this part of the Act is not to create a series of traps or hurdles for the Union to negotiate. It is to ensure fair dealing between employer and Union and to ensure a fair, open and democratic ballot’… However, the other two members of the Court reached their decision on different grounds.”
The hon. Gentleman’s case is that a mysterious uncertainty remains over the effect of insubstantial errors on the operation of the ballot and notice provisions, but I think there is no such uncertainty. It seems to me that the Court of Appeal ruled fairly and squarely in favour of discharging that injunction. The mischief cited as a reason for introducing the Bill seems, when one gives it close examination and reads it with some degree of care, not to be a mischief at all.
Jacob Rees-Mogg
I would be extremely grateful if my hon. Friend, as a lawyer, explained to us whether the Court of Appeal’s decision is precedent-setting for future judgments.
Charlie Elphicke
My hon. Friend is absolutely right. Court of Appeal decisions, by our system of precedent, bind future decisions of that court and all lower courts. As I am sure he knows, only the Supreme Court can change and overrule a precedent. That is highly unlikely, and highly unusual in cases such as BA v. Unite.
Mr Nuttall
One real danger of the Bill is that the current set of established legal precedents would effectively become worthless. We would be back to square one, because new section 232B of the Trade Union and Labour Relations (Consolidation) Act 1992 has not been considered by the courts.
Charlie Elphicke
I completely agree with my hon. Friend, who makes a strong, powerful point. The situation is that the hon. Member for Hayes and Harlington alleges an uncertainty that seems not to exist.
The Bill would seem on the one hand to reverse the burden of proof, and on the other to introduce a concept of substantial compliance that creates even more uncertainty. As a former lawyer, I know that the concept “substantial” is relatively well understood: it normally means 80:20. However, substantial compliance in the context of the Bill creates a further question. What is 80:20 in terms of compliance?
Mr Nuttall
Is my hon. Friend suggesting that 20% of members need not be consulted? Would that be regarded as substantial compliance under the Bill? That would be outrageous.
Charlie Elphicke
My hon. Friend makes a good point. What does substantial compliance mean? I am not sure. The hon. Member for Hayes and Harlington really should have drafted the Bill properly to include a proper definition of substantial compliance. That might at least have earned Labour party support, if not necessarily Conservative support. If before laying the Bill without any discussion he had worked with the Government, it might have been less controversial. He could have worked with his own party to produce something that could achieve the kind of consensus that there should be for private Members’ Bills.
Andrew Bridgen
The salient point is on substantial compliance. Imagine if in canvassing our constituents we were to “substantially comply” with a ballot by delivering papers only to the 80% of people we thought likely to vote in the direction we wanted. Would that be substantial compliance or democracy?
Charlie Elphicke
My hon. Friend asks a fair question. Would it be okay to have substantial compliance in electoral law? I have received letters from the Electoral Commission threatening all manner of prosecution if I do not comply completely with absolutely everything. Should politicians and campaigners only “substantially comply”? Must an employer substantially comply when it comes to dismissing a member of staff? I do not think so. That is not how employment law works. The rules on compliance are strict, and rightly so.
Jacob Rees-Mogg
It is extremely generous of my hon. Friend to give way once again. The concept of substantial compliance is desperately worrying, because if in a Division of the House we had had only to be substantially compliant on an 80:20 basis, the result could almost always be reversed.
Charlie Elphicke
I thank my hon. Friend. He makes a fair point. There are many cases in which there should be full and proper compliance—for instance, in an investigation by an employer into staff misconduct. An employer seeking to dismiss a member of staff should comply fully with all the procedures under employment law and employment practices, and likewise a trade union wanting to strike should be fully compliant with the procedures for all the notifications and other regulations that go with it. That is the right way to do things. It is not good enough to say, “Employers’ behaviour has to be perfect”—and politicians nowadays, we learn belatedly, have to be perfect, or at least try to do the right thing most of the time—“but it is okay for trade unions broadly to do what they like and not to comply with anything.” That seems to be the thrust of the argument put by the hon. Member for Hayes and Harlington.
To return to my central point, the hon. Gentleman knows that his argument will never have the support of Government Members. He might one day garner the support of the Labour party, but it will never have our support. I enjoin him to reconsider whether he really wants to put this Bill to the House, given that there are so many uncontroversial Bills that we could, and should, be discussing and putting to the House on which there is broad agreement. He should withdraw it on the grounds that it is wholly inappropriate for a controversial private Member’s Bill to be put to the House in this way, killing a whole load of other business. He knows that we have no option or choice, because of our philosophy and viewpoint, other than to oppose the Bill. Even the Labour party leadership takes the view that the Bill should not be supported. I therefore invite him to consider withdrawing the Bill.
Philip Davies
My hon. Friend is right. One of the things that I have learned in my short time in Parliament is that those on the Labour Benches tend to be very intolerant of anybody who holds a different opinion from theirs. I do not think that is particularly sensible in a parliamentary democracy.
It is a great pleasure to follow my hon. Friends the Members for Dover and for Bury North (Mr Nuttall), who both made tremendous contributions to this debate. I particularly want to commend my hon. Friend the Member for Bury North on his bravura performance in filleting the Bill and pointing out its many flaws, which hon. Members on both sides of the House were perhaps not aware of until he made his contribution. When I was first elected to this place, my mentor in Parliament was the late, great Eric Forth, the former Member for Bromley and Chislehurst. It is fair to say that he will be smiling down on us after the performance that my hon. Friend has given today, in the knowledge that his memory lives on in another guise. My hon. Friend should be extremely proud of the contribution that he has made to this debate.
As it happens, I perfectly understand the frustration felt by the hon. Member for Hayes and Harlington and his motivation for bringing the Bill forward. On the face of it, I understand why some trade unionists in the cases that he identified—he quoted a couple of cases that were illuminating, and I want to touch on that later—felt that although a substantial majority were in favour of strike action, they had been thwarted by their employers through the courts on a technicality. His Bill is an attempt to deal with that problem, and I certainly understand his motivation. However, I think that he is misguided, for a number of reasons, and I want to explain why.
I want to start by simply looking at the Bill from the hon. Gentleman’s perspective of wanting to do the best for his friends in the trade unions, by trying to enable them to pursue strike action more readily when they feel that it is in their interests to do so. The first reason is the one that my hon. Friends the Members for Dover and for Bury North both mentioned, which is the fact that we are now getting some clarity in the original law. Given that the hon. Gentleman has received a favourable verdict from the Court of Appeal, it seems bizarre that he should want to rip up the law that delivered that favourable judgment and start all over again. I hope that, when he sums up the debate, he will explain why he does not accept the favourable judgment of the Court of Appeal, and why he wants to start all over again, with all the uncertainty that that brings. I cannot see any logical reason for doing that. Perhaps his decision to introduce this private Member’s Bill was made before the Court of Appeal’s verdict, in which case perhaps he might wish to reflect on whether it is now surplus to his requirements.
I do not believe that the Bill addresses the frustrations of the trade unions. The problem in some previous cases has been the wording of the law, and its interpretation, but the law does not need to be completely ripped up. It simply needs clarification or very minor tweaking. My hon. Friend the Member for Bury North pointed out that the current legislation requires unions to provide employers with notice of ballots on industrial action, and to provide exact numbers, workplaces and categories of those to be balloted and their addresses. It also states that any errors must be
“accidental and taken together are on a scale which is unlikely to affect the result of the ballot”.
That is the law as it stands.
As we have rather helpfully teased out in the debate, the existing law does not state that the errors should be accidental or on a scale unlikely to affect the result of the ballot. I think that this is the point that the hon. Member for Hayes and Harlington was trying to make. He and the unions seem not to like the fact that the existing legislation provides for the fact that the errors must also be accidental. All the focus has been on the fact that mistakes were on a scale unlikely to affect the result of the ballot and that the strike action should have been allowed to continue on that basis alone. He did not seem to like the fact that court was also including the test of whether the mistakes were accidental, as the law currently requires. We can argue about whether that is a good idea, but I suggest that he would be far better off simply making a small amendment to the existing law, replacing the word “and” with the word “or”. That would appear to solve his problem.
I do not particularly agree that we should change the law in that way, because I believe that the current provision is a good one, but from the hon. Gentleman’s perspective, he needs only to make a very small change to deliver what he and his trade union want. It would be much more sensible and simple for him to go down that route.
Charlie Elphicke
Picking up on that point, I would not want the House to think that I intended any personal disrespect to the hon. Member for Hayes and Harlington (John McDonnell), who has brought the Bill to the House with the noblest of intentions. My frustration, as a new Member, is that we might lose the rest of today’s business because we cannot vote against this measure in the way that should be possible. I put it to my hon. Friend the Member for Shipley (Philip Davies) that the previous Government did not always listen to the hon. Member for Hayes and Harlington or give him the respect that he deserves, and I hope that the new Government will listen to his proposals in greater detail, and not simply knock them out of court, so that they can be adopted and bring new clarity and certainty to trade union law.
Philip Davies
I am grateful to my hon. Friend for his intervention. Anyone who knows him will know that he would never intend any discourtesy to anyone, and I had certainly taken that as read, but I am sure that the hon. Member for Hayes and Harlington will be grateful to him for that clarification. My hon. Friend certainly did not need to explain that to me, however; knowing him as I do, I know that he would never be discourteous to anyone on either side of the House.
There are simpler ways for the hon. Member for Hayes and Harlington to pursue his campaign, although I would not necessarily endorse them. Part of the hon. Gentleman’s frustration is not to do with the law as it stands. How could it be? As we have explored, the Court of Appeal agreed with his particular standpoint. He cannot therefore have any quibble with the law as it stands. I think the hon. Gentleman’s real quibble is with judges who grant injunctions and the basis on which they do so.
The hon. Member for Hayes and Harlington certainly needs no advice from me—neither does anybody else for that matter—and I am sure that he will not take it, but I am certainly prepared to give it to him free of charge. My suggestion is that he start a campaign around the whole issue of judicial injunctions. What tends to happen when people seek an injunction from a judge—not just in this case, but in other cases, and we often see it in libel or privacy law—is that everything happens very quickly. That is why people seek an injunction—because something is about to happen very quickly. It might be a strike action within a day or two, or a story being printed in a newspaper that is going to have very damaging effects on somebody’s reputation. That is why an injunction is sought at very short notice.
On what basis should a judge be able to grant an injunction? That is the issue. Let me deal with what happens when people seek injunctions. I feel rather nervous about making these points when I am surrounded by so many esteemed people from the legal profession. As a non-lawyer, however, let me clarify my observation of what happens. Because something is going to happen that could have a devastating effect—on a business, on customers or on somebody’s reputation—judges are, in effect, risk-averse. If something is about to happen—an article to be published, a strike to take place—and there is some uncertainty over the law, a judge cannot go back and change the law to stop it happening. What judges quite understandably do is to take a risk-averse view. They feel that the law might need some clarification and it is not entirely clear whether something is legal or illegal, so they adopt the risk-averse option of granting an injunction on the basis that a court can overturn the injunction later. If an injunction is not granted, something cannot be stopped from happening after it has happened. That is why I think the hon. Gentleman might want to pursue the whole area of injunctions and the level of proof or certainty judges need before they can grant them. I believe that that would help his side of the argument; it would certainly be more helpful than promoting this Bill.
Philip Davies
I am sure that my hon. Friend is right. He got rather technical during the course of that intervention, at which point it went beyond my capabilities. The bit that I understood, however, I certainly agreed with. Knowing my hon. Friend as I do, I am sure that I would have agreed with the bits that I did not understand. I therefore commend whatever my hon. Friend said to the hon. Member for Hayes and Harlington who, having a greater intellectual capacity than me, will have understood everything that my hon. Friend said.
Charlie Elphicke
One oddity about injunctions is their application to Members of Parliament. They are very hard to enforce, given the freedom from civil arrest that we enjoy. Does my hon. Friend agree?
Philip Davies
I am being tempted by people who are more expert in the law than I am to comment on matters that they know far more about than I do. My hon. Friends can take it as read that I agree with them on any matter with regard to the law, because they are in a far better position to argue their case than I would be.
I am still warming to my theme of how the intentions of the hon. Member for Hayes and Harlington can better be advanced. His supporters in the trade union movement also take exception to the definition in legislation of “accidental”. We can all probably accept the definition of making a difference to the result. If a certain number of ballot papers were affected, all of which voted one way, but the result would not have changed, the wording in the current law of,
“on a scale unlikely to affect the result of the ballot”
is perfectly clear. From that starts the frustration.
The issue is the “accidental” point. If the hon. Gentleman attacked that problem, as he sees it, by instilling some definition of “accidental” in the Bill, his supporters might find that a more fruitful way forward. In the case of BA, which he quoted most during his speech, the judge, summing up his ruling to grant an injunction, said:
“I do not consider that there is evidence capable either of establishing that UNITE held a reasonable belief in the entitlement to vote of all its members, or enabling it to rely on an ‘accidental failure’ within section 232B.”
The point that Unite was making was that any failings in its ballot were unintentional, and that that met the definition of “accidental”. The judge said in his conclusion:
“In my judgment, an unintentional failure, as it was categorised by”—
Unite—
“in the circumstances of this case, cannot be regarded as an accidental failure within the meaning of that section, even applying a purposive construction to its provisions.”
Therefore, the problem for Unite was that it did not get over the first hurdle of “accidental”. The problem was not, as the hon. Gentleman said, in relation to the test of
“on a scale unlikely to affect the result of the ballot”—
the judge did not even get to that—but that, as far as the judge was concerned, Unite had not got over the “accidental” hurdle. The hon. Gentleman’s unhappiness with the existing legislation can be only with the definition of “accidental”. If he wishes to move things forward, from his perspective, I suggest that he do so by instilling a definition of “accidental” that meets his requirements.
Philip Davies
I am grateful to my hon. Friend. I hope that I shall have the pleasure of listening to his own speech today, because I enjoy his speeches immensely.
I intend to develop this point further, but my direct answer to my hon. Friend’s question is that I believe we should vote against the Bill. I do not think that any of my suggested alternatives could be incorporated into an amendment, because the Bill goes off at a tangent to them.
At the beginning of his speech, the hon. Member for Hayes and Harlington said that, although others might perceive flaws in the Bill, it should proceed straight to Committee, where any such flaws could be ironed out. That strikes me as an argument for never giving a Bill a Second Reading. As my hon. Friend the Member for Bury North helpfully pointed out, the Bill has two clauses, and given that both appear to contain flaws, I do not think that amending them in Committee is an option. We should try to vote them down and start again from scratch. The fact that I have given advice to the hon. Member for Hayes and Harlington does not mean that I would agree with any of the amendments that I have suggested should he introduce them; I merely think that they would help him to deliver what he wants to achieve.
In deciding whether to approve the Bill, we must also decide whether it is necessary. It was, I think, my hon. Friend the Member for Dover who suggested that it was a solution looking for a problem. I hope that when he sums up his argument, the hon. Member for Hayes and Harlington—with his court verdicts in the bag—will tell us what problems the Bill solves, because all the evidence that he gave earlier involved problems that have now been cleared up by the Court of Appeal. It would be helpful if he told us about any current problems of which he is aware, because it seems to me that the Bill is wholly unnecessary.
Charlie Elphicke
Does my hon. Friend agree that the errors in the Bill, although themselves minor, prevent us from supporting it today, and that we should enjoin the hon. Member for Hayes and Harlington to work positively with the Government to find a way of dealing with his concerns? That would enable the trade unions’ own concerns to be taken on board properly, would enable us to vote on them properly if it were found that the law needed to be changed, in Government time, and would ensure that account was taken of any merits in the hon. Gentleman’s argument. His Bill might then actually hit the statute book.
Philip Davies
I am sure that my hon. Friend is right. As it happens, I am content with the law as it stands. I shall be interested to hear what the Minister has to say. I do not know what he will say and I do not want to pre-empt it, but I hope he will say that the Government have no intention of changing the current law, because, as the court has ruled, it is perfectly adequate. I am sure that the Government will always work closely with any Member if they feel that an injustice needs to be corrected, but I am not sure that that is the case in this instance.