Trade Union Bill (Seventh sitting)

Ian Mearns Excerpts

Thursday 22nd October 2015 Public Bill Committees

There is concern, rightly, that the provisions could be applied very broadly, and that they could include any picketing activities referred to favourably by union officials in social media or other communications. That is a very specific point and I want to understand the Minister’s view on it. Will he clarify whether, for example, if a union stated that it was in solidarity with an action happening in another part of the country, that would suddenly make it liable under the picketing regulations with respect to that action, even though it was not the union that organised it? We are getting into difficult territory, where unions could get caught up in all sorts of legal proceedings through untoward circumstances. I would appreciate it if the Minister would clarify the position.

[Ian Mearns (Gateshead) (Lab)]

It is a pleasure to serve under your chairmanship this morning, Sir Alan.

Just before I came to this room for the Bill Committee, there was an urgent question on human rights in China, put down by the hon. Member for Congleton (Fiona Bruce), I think. It is interesting that that question should exercise Members of this House to such an extent, when often some of them are less interested in the human rights of people in the United Kingdom. The clause is at the core of some of the most offensive aspects of this pernicious Bill. It clearly shows the extent of the prejudice and contempt in which the Government hold trade unions, trade unionists and working people.

I want to echo some of the comments by my hon. Friend the Member for Cardiff South and Penarth about the Government’s consultation. The consultation document was published in July and it dealt with protests related to pickets. I understand the Minister getting vexed because we have not yet had the response to the consultation, but clearly the Government were thinking about something when they included a requirement for publication of picketing and protest plans, and, in the bullet points under that heading, that the union should give notice of whether

“it will be using social media, specifically Facebook, Twitter, blogs, setting up websites and what those blogs and websites will set out”.

So as well as giving notice that social media were to be used, the union would have to give notice of what it was going to say in support of a picketing protest. That attitude has all the hallmarks of an authoritarian regime.

Authoritarian regimes across the world—China has been mentioned this morning—might give little thought to restrictions on their citizens’ human rights, but it is a disgrace that our Government should consider such action in the United Kingdom reasonable. Citizens in the UK are covered now by the law of the land. We are all—everyone—required to keep the peace; and we have a police force to ensure that the peace is kept in an appropriate manner. Trade unionists and workers are all part of the citizenry and are covered by those same laws, so why do we need additional draconian measures to restrict workers’ and trade unions’ right to lawful demonstration?

In the 1980s Mrs Thatcher described the Argentinians as “the enemy without” and trade unions and trade unionists as “the enemy within”. I wonder whether the clause is the 2015 Conservative Government conducting unfinished business on behalf of one of the Prime Minister’s predecessors. The Prime Minister and his colleagues in Government want to pretend that times have changed and that the so-called “nasty party” that attacked the rights of gay people, workers and others is no more. The clause puts the lie to that pretence.

The Government party, through this legislation, retains its mantle, I believe, as the nasty party. The party and the Government consider their own citizens to be the enemy. The clause is not only not necessary, the law of the land already protects us all from unreasonable and unlawful public demonstrations. No, it is not necessary.

[Dr Lisa Cameron (East Kilbride, Strathaven and Lesmahagow) (SNP)]

Is the hon. Gentleman aware of a YouGov poll conducted last month, indicating that a majority of the public feels that it is a waste of police time to be engaged in this manner? In addition, a majority of respondents who stated they voted Conservative also held similar views.

[Ian Mearns]

I am not surprised because the vast majority of our adult population goes to work for a living. Whether they are members of trade unions or not would not stop them in extreme circumstances trying to exercise their right to withdraw their labour if they felt their employer was being unreasonable. The legislation is not necessary but it is highly offensive. Workers and trade unionists are the backbone of this country, the so-called hard-working people that the Tory party pretends to bother about and represent.

The measure of a civil society is how it respects the rights of its citizens, and how those without power and wealth are able to challenge those with power and wealth. With this legislation—particularly this clause—the Government have demonstrated precisely where they stand on the issue of human rights and freedom. Their fundamental position is to oppress and restrict the weakest, the most vulnerable and those without, in order to protect at all costs privilege, wealth and inequality.

The restrictions in the Bill on picketing are a disgrace and threaten to increase tensions on picket lines by singling out workers who are merely exercising their democratic right to withdraw their labour. It is, therefore, no surprise to learn that the human rights organisations we heard from last week—Liberty and Amnesty International—have said the provisions in the Bill represent a major attack on civil liberties in the United Kingdom.

It is not only human rights organisations that are uneasy about the proposed arrangements on picketing. Substantial concerns have been raised on the practicalities of the arrangements, some of which have been communicated first hand to this Committee. I draw on evidence provided to us last week by Deputy Chief Constable Hall of the National Police Chiefs’ Council, who said:

“In the majority of cases, there is no real need for the police to be involved with industrial disputes and picketing. Indeed, our stance is that we would wish to avoid it if we can. Many pickets and industrial disputes run without any contact or involvement with policing.”

He went on to say:

“There are provisions in the Bill for police to be notified of picket lines, and my reading of that is that, in pretty much every instance, we would be notified of industrial disputes and picketing. My position is that I do not see that as absolutely necessary, simply because we would expect those picket lines to be self-policing as far as possible. Involvement of police beyond that should be the exception, rather than the rule.”––[Official Report, Trade Union Public Bill Committee, 15 October 2015; c. 93, Q242.]

That gives us a clear insight into his opposition to the proposals on those grounds.

Deputy Chief Constable Hall is not alone in that. The Police Federation added similar concerns that the already overstretched police force would not be able to cope with increased levels of supervision of pickets and continue to do its job effectively, as it is already struggling due to limited resources at present. Its statement articulately expresses that sentiment:

“As we have seen in recent weeks, some forces may not even be able to investigate burglaries in future...This proposal for officers to more intrusively supervise strikes indicates more clearly than ever that what we need is a wide-ranging debate to inform both the future direction of the police service and the public’s expectations as to what we are able and simply unable to do. Police officers join the job to keep the public safe and lock up criminals but doing that job effectively is getting close to impossible for many officers around the country.”

It is not just the police force that has concerns about the lack of resources. The general public—the very people who those on the Government Benches claim to be putting first by implementing the Bill—agree. We have heard about the YouGov survey and the TUC figure that three quarters of the public believe it is a bad use of police time for workers taking industrial action to have to give the police 14 days’ notice if they intend to carry a loudspeaker or banner on the picket line; I happen to agree.

[Jo Stevens (Cardiff Central) (Lab)]

The Government’s own Department for Business, Innovation and Skills consultation document acknowledges that most unions are already conforming to the guidance set out in the code of practice. Does my hon. Friend agree that this whole raft of new restrictions is therefore entirely unnecessary?

[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?

--- Later in debate ---

[Ian Mearns]

That is a concern, because the use of blacklists by some employers—I will not tar all employers with the same brush—has had a devastating impact on hard-working families.

The results of the public consultation have not yet been published. I refer to my earlier comments about the overstretched police force. Do Government Members believe that policing peaceful picket lines, monitoring wildcat tweeting and using wider controls on social media are the best use of police time? As I see it, the proposal merely serves to stack the already skewed balance of power in the workplace further away from employees by adding unnecessary caveats to their right to withdraw their labour if they are upset by the actions of their employer.

[Jo Stevens]

It is a pleasure to serve under your chairmanship, Sir Alan. Government Members seemed perturbed by our opposition to their proposals on picketing during the evidence sessions last week. They did not seem to understand how a picket line could be assembled because of an incredibly serious issue and yet be done with good humour and within the law. I am sure many of our colleagues across the trade union movement would be happy to visit a picket line with them, to show them what happens there. As with much of the coverage of trade unions in the papers, the headlines do not match the reality.

As we have heard, there are already strict rules for picketing and adherence to the code of practice, which even the CBI, the Government’s own witness, admitted last week generally “works well”. In the minority of cases in which there is an issue, the police already have sufficient powers to deal with any sort of suggested intimidation or abuse, because such actions are illegal. Picketing is not illegal—so far. It is therefore completely unnecessary to bring forward increases in regulation and bureaucracy that will waste police time. That is why so few witnesses supported the Government’s proposals in the evidence sessions or could say why such clauses are needed given the current laws.

--- Later in debate ---

[Stephen Doughty]

The hon. Gentleman is doing an excellent job as a member of the Night’s Watch, because clearly winter is coming for the trade union movement; that is very much what the Bill is about. I support many of the arguments that he has advanced about the implications in relation to policing around pickets. Were he to press amendment 104 to a vote, he would gain our support, because as he has said, unions are more than willing, as things stand, to co-operate with the police during picketing activities, but if the clause is passed as drafted, there will be many vulnerabilities—for example, in relation to whether people are able to show the letter of authorisation; they may have misplaced or lost it. These are very significant legal changes, and the amendment is straightforward. Essentially, it is asking police officers to follow, when asking to see a letter of authorisation, basic formal processes that simply mirror the Police and Criminal Evidence Act guidelines, so it would certainly enjoy our support.

Let me speak to our amendments 28 and 29. Amendment 28 would require trade unions to inform the chief constable of the identity of picket officers, rather than, as the Bill states, the police more generally. That is because it is unclear at the moment whom the trade union would be expected to inform under the Bill and it is excessive and unjustified that trade unions should be legally required to inform the police more generally of the picket supervisor’s name and contact details, which could deter responsible individuals who might otherwise have been willing from volunteering to co-ordinate pickets.

Worryingly, there could be risks for the police in being expected to compile and retain information about trade union activists. That brings into consideration the concerns expressed about blacklisting. It was important that we heard what the police representatives had to say. The police do not want to be put in the middle of this. They do not want to be in the invidious position of being expected to enforce and interfere in this way as an arm of the state when their role is to police by consent and act in a neutral way to ensure that all the individuals’ rights are respected. I certainly believe that the clause would result in excessive monitoring of union activities and is likely to breach trade union members’ rights to privacy as protected by article 8 of the European convention on human rights.

Those are not idle concerns. They have been resoundingly explored, particularly by UCATT in the construction sector, but also by others, who have shown what has happened in the past in relation to blacklisting. I would therefore like to understand from the Minister when he responds to the amendments why the Bill is drafted such that it has this very general definition of “the police”. Does he not accept that there are serious implications not only for the police but for those attempting to comply with the law if it remains in that general state?

Amendment 29 would remove the requirement on unions or the picket supervisor to inform the police of where the picketing will be taking place. The reason for that is not that we do not believe that people should know where picketing is going to take place, but because the 1992 Act already provides that picketing must take place

“at or near the place of work”.

That is a pretty specific definition; it is pretty clear. And why would pickets want to be occupying a place not outside the workplace where the dispute is taking place anyway? I believe that the additional requirement is unnecessary and there is a risk that unscrupulous employers will mount legal challenges if the trade union does not provide a very specific, accurate location or if the picket has to move a short distance. I can foresee that if a picket had to move from one location to another because of inclement weather, or to ensure access along a road or so on—the picket is trying to be reasonable, comply and do things sensibly—an employer acting in a vexatious manner might mount an injunction or challenge because the exact location was not specified as required in the Bill. I hope that the Minister will comment on that.

[Ian Mearns]

The Minister said in his intervention that many of the suggestions in the consultation do not appear in the Bill, but does my hon. Friend share my concern that, even so, they could come forward subsequently as regulations?

[Stephen Doughty]

Indeed, I do share that concern, because, as we have seen, the Government have not published the regulations in respect to the Bill and they have not published the consultation responses. It is clear that they are trying to bring about much of this in as much darkness as possible. That is of great concern to all those who will be affected.

In conclusion, I re-emphasise that we will be happy to support the hon. Member for Glasgow South West should he seek to press his amendment.

--- Later in debate ---

[Nick Boles]

I do accept that this is a matter of legitimate debate, but there are all sorts of laws on the statute book that almost all citizens in the country abide by almost all the time, and that does not mean that we do not think those laws should be on the statute book. Laws are there not just to deal with the general behaviour of most people, but to deal with the extreme behaviour of a very small number of people in very rare circumstances. It is because most unions have abided by these provisions so happily and successfully that we feel it is reasonable to expect all unions in all strikes to abide by them. I fail to see that this is an egregious step. When we were drafting the Bill, I was clear to my officials that I did not want to go further than the existing code. I believe we have satisfied that in the Bill, so I fail to see the hon. Lady’s concern.

[Ian Mearns]

Surely the sort of extreme behaviour in exceptional circumstances that the Minister is talking about is already covered by aspects of the criminal law.

[Nick Boles]

That is certainly true of a whole range of criminal offences, but it is perfectly reasonable for us to want to root out the specific failure in some cases—I accept they are rare—to inform the police of when pickets are going to happen and whom the supervisor is, and to ensure that the supervisor is readily contactable. It does not infringe the liberty of anyone who currently accepts all these provisions and has done since 1992.

[Ian Mearns]

Will the Minister give way?

[Jo Stevens]

rose—

--- Later in debate ---

[Nick Boles]

I am grateful that the hon. Gentleman has given me the opportunity to explain how the code of practice works and why we think it is appropriate to ask for familiarity with it. The code has been in place since 1992. It sets out the principles and the legal requirements that underpin picketing, and it sets out guidance that, if followed, will mean that the picketing will be considered peaceful. To my knowledge, these provisions have not given rise to concern for the past 20 years or so.

The Bill requires the picketing supervisor to be familiar with the code. In the Government’s view, familiarity with the code represents sensible and practical preparation for someone about to undertake the role of picket supervisor. However, familiarity does not mean an ability to quote verbatim every single provision of the code; it means a broad familiarity with the provisions of the code and the reasonable requirements it places. The code itself is not onerous. It has not given unions cause for concern, so we believe that a supervisor’s familiarity with it is helpful and supportive of the shared aim of peaceful picketing.

Let me move on to amendment 30. As I said, clause 9 introduces the statutory requirement to appoint a picket supervisor and to issue that person with a letter of authorisation so it is clear that the picket is lawful. Removing that requirement, as proposed by the hon. Gentleman, would make it more difficult for unions to show that they have complied with the requirement to appoint a supervisor. It may also cause confusion on the picket line about whether the picket supervisor has indeed been appointed and whether the picket is legal.

We are aware of the sensitivities around union membership. I would like to underline the fact that the entitlement for any other person to be shown the letter is currently restricted to those with reasonable cause, and in my view that arguably means the employer at whose workplace the picketing will take place. It would be very difficult for a random passer-by to show reasonable entitlement. However, I am grateful for the hon. Gentleman’s explanation. I will reflect on the concerns raised, and I will return to this issue on Report.

[Ian Mearns]

How would a picketing supervisor in possession of such a letter know who is a random passer-by and who is a legitimate representative of the employer, unless they are carrying some sort of letter to say they are so?

[Nick Boles]

As I have indicated, we will return to this issue on Report after reflecting on it. That is a very helpful contribution, and I will ensure our reflections take it into account.

Amendment 31 is on the requirement for the picket supervisor to be present or able to attend at short notice, and to be readily contactable. The hon. Member for Cardiff South and Penarth proposes a new text that supplies a reasonable test of those requirements and removes the phrase

“While the picketing is taking place”.

Let me explain how the provision should work in practice. The current legal text balances a clear statutory requirement with allowing sufficient flexibility for it to work in the real world. It does that by enabling the picket supervisor to be absent, provided that he or she is able to attend at short notice, which is why it is linked to the requirement for the picket supervisor to be readily contactable by the union or the police. The effect of these measures is that the picket supervisor does not need to be present at all times. In fact, they positively enable the picket supervisor to be absent, provided they are able to attend at short notice if necessary.

I am concerned that the hon. Gentleman’s amendment would result in the requirement becoming legally less clear. A lack of legal clarity will likely result in more litigation and higher legal costs, most probably for unions.

--- Later in debate ---

[Ian Mearns]

Can I be of assistance to the Minister?

[Nick Boles]

I am always happy to take assistance from the hon. Gentleman. I know that he means it with a generous heart.

[Ian Mearns]

May I take the Minister back to the information he gave the shadow Minister about using “any means” to communicate the intention to picket to the appropriate authorities? I can imagine the scenario—and the Minister might want to think about ruling some of this out—where an ingenious trade unionist or picket supervisor uses semaphore, Morse code by means of an Aldis lamp, invisible ink on best vellum, Native American smoke signals, or even, as I have witnessed on a Remploy picket line of GMB workers, British Sign Language. It may well be that “any means” is not appropriate; it will have to be a means that the appropriate authority can understand.

[Nick Boles]

I thank the hon. Gentleman. I think I did make it clear that it needs to be any means in writing, though his last example provides an interesting question. Nevertheless, the position would be any means in writing.

I was waiting for in-flight advice and I fear that the hon. Gentleman is not going to be any more satisfied than I am by the advice that I have received, which suggests that short notice means that the picket supervisor needs to be there promptly to deal with issues should they arise. The real point is whether we are opening up to greater legal challenge than is currently the case. Therefore, the question is, does “short” provide more or less clarity than “reasonable”? My argument is that “reasonable” is more capable of multiple interpretations, and therefore debate, challenge and legal costs, than “short”, which does have a common meaning in the English language that we all understand. Of course, it will inevitably depend on the circumstances and the particular situation of the picket. If it is held in the middle of the night, “short” would probably be interpreted differently from how it would be if held during working hours. I think it is better to stick with “short” rather than move to “reasonable”.

Finally, because I am worried that I am taking too long, Sir Alan, I move on to amendment 33. Clause 9 requires the picket supervisor to be easily identifiable as such to the pickets, the employer and other workers. It presents clear, tangible confirmation that the union has complied with the picketing supervision requirements and provides a clear point of contact on the picket line. Therefore, it creates confidence that there is someone who is familiar with the code and who supervises the picket so that it is conducted peacefully.

Wearing a badge or another identifiable item of clothing will balance our objective to ensure that picketing can take place in accordance with the right to assemble, while providing confidence for non-striking workers to be able to go into work. That balance is what is important here.

I point out that the code suggests that all people on the picket should have some kind of badge or identifiable piece of clothing. That is not something we have had objections to over the years, but we feel it would not be reasonable to require that in statute of everyone. Given the picket supervisor’s particular function and responsibilities, it seems reasonable to require that. They do not have wear armbands. A badge, a baseball cap—I am sure we can think of many ways for people to identify themselves as picket supervisors.