Trade Union Bill (Seventh sitting)

Chris Stephens Excerpts

Thursday 22nd October 2015 Public Bill Committees

[Ian Mearns]

I could not agree more; I was just coming on to that very point. There is already legislation in place that those on picket lines must, and do, comply with. That “peaceful pickets” legislation is outlined in section 220 of the Trade Union and Labour Relations (Consolidation) Act 1992, and unions must also follow the relevant code of practice. If that legislation were breached on a regular basis, I could see why the Government would feel the need to push through this Bill, in order to safeguard workers and the public, but unions do comply with existing legislation. Even the Government’s own BIS consultation document supports that statement, finding that most pickets do conform with guidance in the code of practice. In that case, why do the Government believe the legislation is so necessary? Are they not using a legislative sledgehammer to crack a very small nut?

Furthermore, as the Regulatory Policy Committee’s recent review of the Government’s impact assessment of the measures on picketing found,

“there is little evidence presented that there will be any significant benefits arising from the proposal”.

Given that such organisations have failed to find any need for the proposal or any significant benefits arising from it, why is the legislation being rushed through the House at such a pace? As we heard, we have not had much time to go through the Bill line by line, despite its importance.

[Chris Stephens (Glasgow South West) (SNP)]

Does the hon. Gentleman share the concern held by many, including me, that if unaltered, the clause will lead to more blacklisting within the community?

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[Stephen Doughty]

We will discuss some of the other issues on this subject in detail when we consider the following groups of amendments. I appreciate the Minister’s clarification on the specific question that amendment 26 seeks to address.

There is a fundamental problem here, and I hope the Minister will elaborate on it in his further comments. What evidence base is he using when he talks about these examples of intimidation? No Opposition Member condones intimidation or other such activities—indeed, people carrying out such activities should be prosecuted under existing laws—but what percentage of overall picketing activity in the past year or five years does he believe has resulted in such activity? My hon. Friend the Member for Cardiff Central made a good point, and we have also heard a good point on the dispute between the London fire brigade and the FBU. The commissioner could not give us facts on whether FBU members had been arrested or prosecuted, but I understand that an agency worker was in fact arrested for potentially violent actions towards an FBU member. There is a big problem with the way in which this issue has been characterised.

The Royal College of Midwives was clear on the implications of this clause and the associated provisions:

“We believe the intention is to frighten and confuse midwives from exercising their right to protest for fear that they will make a simple mistake and be prosecuted.”

I am glad for the Minister’s clarifications, but we need to consider the overall impact of this clause and the related provisions.

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Chris Stephens]

I beg to move amendment 104, in clause 9, page 5, leave out lines 1 to 13 and insert—

‘(3) A picket supervisor is required to show a constable a letter of authorisation only if

(a) the constable provides documentary evidence that he or she is a constable;

(b) the constable provides his or her name, and the name of the police station to which he or she is attached; and

(c) the constable explains the reasons for the request to see the letter of authorisation.

(4) If a picket supervisor complies with a constable’s request to produce a letter of authorisation, the police officer shall provide the picket supervisor with a written record of the request, the reasons for it, and an acknowledgment that the request was complied with.

(5) If a picket supervisor fails to comply with a constable’s request to produce a letter of authorisation, the police officer shall provide the picket supervisor with a written record of the request, the reasons for it, and an acknowledgment that the request was not complied with.

(6) Information about the identity of a picket supervisor and any information relating to the production of a letter of authorisation shall be retained by the police only for the purposes of giving evidence in legal proceedings directly related to the picketing to which it is connected.

(7) For the avoidance of doubt neither a member of the public nor an employer shall be entitled to request a picket supervisor to produce a letter of authorisation.”.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 28, in clause 9, page 5, line 5, leave out “police” and insert “Chief Constable”.

The amendment would ensure there is a single, senior contact within the police force for communicating information about picketing.

Amendment 29, in clause 9, page 5, line 7, leave out paragraph (b).

[Chris Stephens]

It is a privilege to serve under your chairmanship, Sir Alan.

This is a bad Bill, and clause 9 is a bad clause. Some of the difficulty that many hon. Members have had with the Bill has been over whether to oppose it totally or try to amend it. The fact that Amnesty, Liberty and the Blacklist Support Group have major concerns about infringements of civil liberties, and their consequences, has already been mentioned. Amendment 104 is intended to make things a little clearer to the police and the trade unions.

First, we want to remove the words “any other person” from the clause, and we believe that there will be serious consequences if that is not done. It is not clear who that other person is. It could be anyone; but who would it be? It would not be a friend of the trade union movement, that is for sure. It would not be a nice, cheerful person who supported the trade union movement. It would not be George and Zippy from “Rainbow”, Rod, Jane and Freddy or even—perhaps more appropriately—Bungle. It would probably be someone with the personality of the Lannister family in “Game of Thrones”—anyone who watches that programme will understand where they would come from politically—or perhaps Biff Tannen from “Back to the Future”, which was mentioned at Prime Minister’s questions yesterday.

I am using humour; but things could be somewhat more sinister. The other person wanting to know the information might, for example, be a member of a fascist organisation—of one of the organisations that we know share the names of trade unionists and other people on websites. A friend of mine, Iain Titherington, who is a constituent of the shadow Minister, has appeared on a website, Redwatch, for his trade union activity and for being a secretary of Searchlight Cymru. The provision is designed to target people.

We believe that giving employers details of picketing would lead to more blacklisting. We know from recent court cases that employers are still being taken to court over such serious issues. We heard from Dave Smith of the Blacklist Support Group about the possible consequences for an individual who is put on a blacklist.

Professor Keith Ewing’s written submission to the Committee contained important remarks on the principles of liberty in relation to the clause:

“It is a fundamental principle of law in this country that people are free to go about their business without being stopped by the police, unless they are suspected of having committed an offence, in which case they may be arrested. Indeed so important is this principle that it was regarded as a ‘constitutional’ principle by a Scottish court. At common law, the police have no right to stop, detain or search individuals, though there are a number of statutes that provide clear exceptions to this.”

The evidence went on:

“It is important fully to comprehend what is being proposed by the Trade Union Bill (clause 9), quite apart from the legitimate concern about armbands, badges and the like: A picket supervisor engaged in lawful activity (indeed in Convention protected activity) may be required by a police constable (whether or not in uniform) to produce a written document (the letter of authorisation); It will be necessary for this purpose for the police officer to stop and detain the individual, for as long as it takes for an exchange to take place…The demand may be made by the police officer even though the individual in question has not committed a criminal offence, and is not suspected of having committed an offence.

Failure to provide the letter of authorisation is not an offence, but there is no right on the part of the supervisor to ignore the constable’s demand, meet it with a testy reprove, and move on. This is because failure to provide the letter of authorisation will have legal consequences, in the sense that the picketing may thus be rendered unlawful and actionable at the suit of the employer.”

Professor Ewing continued:

“Moreover, it is striking that there are no formalities or safeguards to be complied with when the demand is made to see a letter of authorisation. This contrasts with the stop and search powers in the Police and Criminal Evidence Act 1984 and the Terrorism Act 2000. In these cases the police officer may be required to provide…documentary evidence that he or she is a constable, if the latter is not in uniform; his or her name and the name of the police station to which he or she is attached; the object of the proposed search; the reasons for using the power; and a record of the search after it has taken place. An individual stopped while engaged in lawful and Convention protected activities might reasonably expect to have at least the same level of procedural courtesy as someone stopped while suspected of criminal or terrorist-related activities.”

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[Nick Boles]

That is a very good question. I imagine that the picket supervisor could communicate with the police in whatever form they wanted. I promise to check that point.

Amendment 104 further removes from the clause the requirement for the union to issue the picket supervisor with a letter of authorisation. It also removes the requirement to show that to a constable or any other person who reasonably asks for it. As I have already mentioned, the letter of authorisation relates to the picket so that it is clear that the picket is lawful. The removal of the letter of authorisation would create uncertainty about whether the picket has been authorised by the union. It would also make it more difficult for the union to show that it has complied with the requirement to appoint a supervisor.

The other substance of the amendment proposes to insert new requirements for the constable in relation to any entitlement to see the letter of authorisation. It sets out that the constable would need to provide their personal details, to which police station they are attached, the reasons to see the letter of authorisation and a written record whether the request had been complied with.

Our intention in clause 9 is that this letter authorises the picket, not the picket supervisor. Therefore, it does not need to contain the name and personal details of the picket supervisor. I would like to reflect again on whether that is articulated as clearly as it could be in the Bill.

The police will already have been informed of the name and contact of the picket supervisor so that they are able to respond quickly should a problem occur. All uniformed police officers carry a warrant card as proof of identification and authority. Those generally include a photograph of the holder as well as the holder’s name, rank, warrant number and a holographic emblem to mark authenticity. A requirement for a written record would appear an additional and unnecessary burden when considering this in relation to a letter of authorisation for a picket.

I am aware that the entitlement to see the letter of authorisation by any person who reasonably requests it has caused some concern. I am grateful for the insights provided by hon. Members and will reflect on those further. I therefore ask the hon. Member for Glasgow South West to withdraw the amendment.

[Chris Stephens]

I agree with the shadow Minister that winter is coming. The Minister has not addressed issues relating to blacklisting and, like the hon. Member for Cardiff Central, I am very concerned about the approach that occurs in guidance and, whether we agree or not that it is interlocked, it will have other consequences for legal proceedings. I do not believe the Minister has addressed the concerns and consequences of that and feel obliged to press for a Division.

Question put, that the amendment be made.

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[Stephen Doughty]

That is indeed revealing. I hope that sets a precedent for discussions we might have in due course. [Interruption.] Let us see where we go. Perhaps we can persuade the Minister. We will need more clever questions.

[Chris Stephens]

I assume the Minister believes that emails in relation to picketing will be safe and secure.

[Stephen Doughty]

Perhaps the Minister would like to confirm that in his remarks. Before we discuss the amendments, I want to reiterate the point at the heart of the debate. As the Minister says, we already have the picketing code, which many people comply with, and we have been clear that many of the potential offences that the Minister seeks to avoid are already covered in law. My fear is—I genuinely ask the Minister to reflect on this—that whatever the Government’s intentions are, the reality is that others will seek to exploit parts of the Bill as drafted to make the rights of others illusory.

We heard from Liberty in the oral evidence sessions that many aspects could be used by others to try to bring injunctions and proceedings. Ultimately—this goes back to our debate on the gagging law—many are frightened about potential non-compliance with the law. The RCM made that clear:

“We believe the intention is to frighten and confuse midwives from exercising their right to protest for fear that they will make a simple mistake and be prosecuted.”

That is the fear of many people who are not experts in trade union law and the existing legal provisions. Let us remember that the overwhelming majority of those who engage in such activities would never contemplate the intimidation or other unsavoury activities that the Minister outlined.

Amendment 27 would remove the requirement that the picketing supervisor must be a person familiar with the provisions of the code of practice on picketing. It is not that I hope that people are not reading and understanding it, but I believe that that requirement is excessive and creates a risk that unions could again be exposed to legal challenges because a picket supervisor could not answer a random question about the code of practice even though the picket activities they were supervising were peaceful and otherwise lawful. I would appreciate clarity from the Minister about the intention behind this measure, because it could be misused by those who would seek to make rights illusory.

Amendment 30 is on the letter of authorisation. It would remove the requirement on picket supervisors to show their letter of authorisation to constables who ask to see it. We have discussed that already, but I have concerns that the interaction between a police officer—a “constable” as defined in the Bill—and an individual could form the basis of a future legal challenge by the employer and that that could again put the police in an invidious position. The hon. Member for Glasgow South West covered the circumstances in which others could demand to see the letter. Fascist organisations or others could seek to use potential loopholes in the Bill to cause frustration to those going about exercising their rights reasonably.

Amendments 31 and 32 are important. Proposed new section 220A(7) of the Trade Union and Labour Relations (Consolidation) Act 1992 will place a duty on picket supervisors to be either constantly present at a picket or able to attend at short notice. The Opposition believe that that would place an onerous responsibility on picket organisers, especially when pickets are scheduled to take place overnight as well as during the day, so the amendments would remove that requirement. Here again there is potential for a really unreasonable requirement to be placed on those who otherwise seek very much to comply with the spirit and intent of the existing code of practice and this law if it is to be enacted. I would appreciate the Minister’s comments on those points.

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[Stephen Doughty]

We are starting to make some progress through some meaty issues. Clause 10 deals with the Government’s extensive proposals around political funding and how unions operate. We discussed such matters at length on Second Reading. We heard significant evidence from the Trade Union and Labour Party Liaison Organisation and from several unions that contribute to and maintain political funds. Although there was some japery from Government Members during that evidence session, it is important to understand the historical significance of the Government’s proposals, which go well beyond what even previous Conservative Administrations have considered and well beyond the bounds of cross-party consensus on political funding. The existing legislation governing trade unions that want to contribute to political parties or engage in certain political activities is clear, rigid and tough, and rightly so. The Opposition would not want it any other way and neither would the trade unions or the trade union members with whom I have spoken or who have given evidence.

As defined by section 72 of the 1992 Act, a trade union wishing to undertake such activities must establish a political fund. Before doing so, trade unions are legally required to ballot their members to ask, through a political fund resolution, whether they agree to the union maintaining a political fund. Trade unions are also required to ballot their members every 10 years to determine whether the trade union should retain the political fund. Union members currently have the right to opt out from their subscriptions being used for political fund purposes. Let us be clear that that relates not only to union subscriptions or affiliations to the Labour party, but to all the activities covered by political funds. Members can opt out at any time. It is important that the Committee understands that, because the idea that unions are somehow giving this money away with members having no democratic role is simply not the case.

The Government’s proposals in clause 10, however, replace that arrangement with a new requirement on union members to opt in every five years if they agree to their subscriptions being partly used to fund political parties or, as could be encompassed by the Bill, party political campaigns. Union members will retain the right to opt out from paying into the political fund at any point.

The Minister said earlier that I was potentially pre-empting comments that he was going to make, and I might do so again now. He might try to dress up the clause as an attempt to bring things into line with the situation in Northern Ireland, but it is important for the Committee to understand that it goes beyond the current practice there, which requires union members to agree to paying into the political fund only once. They are not required to renew their opt-in.

The Minister might also try to argue that the clause is about levelling the playing field with the duties that apply to companies that make political donations, but, again, it goes well beyond that. Part 14 of the Companies Act 2006 requires companies to get the authorisation of a shareholder resolution before making political donations of £5,000 or more. However, shareholders do not have a right to opt out of company political expenditure, and nor is there an opting-in arrangement.

At the risk of sounding like a broken record, I ask again: what is the Government’s real intention? Committee members should be left in no doubt that the purpose of requiring trade union members to opt in to political funds as required by the clause is simply a nakedly partisan attack aimed at damaging the finances of the Labour party. Such a move is designed to ensure the inevitable by gifting the Conservative party an ever greater financial advantage than is already the case.

[Chris Stephens]

I would argue that it is more sinister than that. Does the shadow Minister agree that the clause is also about a trade union’s capacity to use its political fund for general campaigning?

[Stephen Doughty]

Indeed, I believe that to be the case. I have heard some clear evidence from unions that maintain political funds and, although affiliated to the Labour party, undertake other activities, as well as from those that are not affiliated to the Labour party but maintain political funds. The Government have already taken forward extensive regulation relating to the Political Parties, Elections and Referendums Act 2000, the gagging Act and so on. A lot of unions believe that activities will fall under those provisions and are worried about how they will comply.