Jacob Rees-Mogg
Main Page: Jacob Rees-Mogg (Conservative - North East Somerset)Lawful Industrial Action (Minor Errors) Bill
Jacob Rees-Mogg Excerpts
Mr Nuttall
There are various areas of the law. We have a de minimis rule, for example, which covers cases where there has been a trivial or minor breach. The judges will often overlook such a trivial or minor error if it could be construed as complying with the de minimis exclusion for understandable human error.
Jacob Rees-Mogg (North East Somerset) (Con)
I thank my hon. Friend for giving way so graciously and so often and for elucidating so many points in this debate. Does he agree that it is only right that trade unions be held to the highest standard of accuracy in holding these ballots, because they get a special exemption from the contract law to which their members would otherwise be subject? As they are getting an exemption under the law, should they not be required to do things absolutely properly? Perhaps the Bill should be amended to tighten the regulations rather than to loosen them.
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.
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.
Jacob Rees-Mogg
Does my hon. Friend agree that the clause is particularly dangerous, because it allows errors that have been made, which may or may not have been considered to be substantial before, to be reconsidered after the fact? It is most unsuitable to legislate in that way, so the clause is one of the worst in the Bill.
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.
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.
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
You are very kind, Madam Deputy Speaker. It really is a red-letter day now. I shall put that in the literature I will distribute at the next election. However, what surprised me was not just that you were listening to my speech, but that anyone was listening to it. I am afraid that my experience is usually otherwise.
I hope that the hon. Member for Hayes and Harlington will accept at least some of my suggestions of alternative ways in which to promote his side of the argument.
Jacob Rees-Mogg
I too have been listening to my hon. Friend’s speech with great interest. Does he believe that the Bill could be amended in Committee, or does he think that we should vote it down and kill it off as early as possible?
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.
Philip Davies
That is a fair point, and one might legitimately ask the RMT how close it is to its members when it balloted a signal box that burnt down years ago. It does not give one much confidence that the union has a close working relationship with its members.
People may forgive the RMT for not knowing that the signal box at Pelham in Lincolnshire was demolished in 2008 or that the signal box at Ascot in Berkshire was closed in October 2009. People might ask how the union could be expected to know these things—although I would presume that it should know. However, it is surely difficult for it not to be aware that the signal box at Chalford in Gloucestershire closed down in 1966. One would have thought that the union would have been aware of that. Nor should it have overlooked the fact that the signal box at Northallerton in North Yorkshire closed in 1980. I personally think that those are rather serious errors, not the minor errors that the hon. Member for Hayes and Harlington suggests when he uses the case as a reason why the law should be changed.
The problems were not confined to signal boxes that were closed down 44 years ago. In 67 locations, the number of RMT members balloted exceeded the total number of employees. I do not know what the rate of union membership is among the staff of Network Rail, but I would be astonished if it were more than 100%. But that is what the RMT seems to think. A further 26 places, with up to 100 employees, were missed out completely, including the key signal box at Rugby. As we have heard, the difference in the vote between those who voted for strike action and those who voted against was 224. It is therefore difficult to argue that the examples that I have given—of the balloting of signal boxes that had burnt down or been closed, of ballot returns of more than 100% and of the failure to ballot some locations—were not material factors that should have been taken into consideration. Those are substantial errors that could have made a material difference to the result.
Jacob Rees-Mogg
It occurs to me that if the Bill were enacted and then used too widely, it would allow malevolent people to use it to push through something against the will of their members and then claim that only minor errors had been made. That would be a slippery slope.
Philip Davies
My hon. Friend is right, and we should guard against that. I do not think that the hon. Gentleman wants to exempt minor errors, which are already protected. He wants to exempt major errors from the scrutiny of the courts and we should be very wary of doing that.
In 12 locations, there were no operations staff and workers were clearly ineligible to vote—
Mr Davey
My hon. Friend puts his finger on it. We need to weigh in the balance not just the rights of ordinary trade union members, but the rights of the business, the shareholders, the public, customers and other businesses that are affected by strike action. That is why the law has evolved as it has. It is a balancing act. Sometimes people say that the democratic result of a ballot was clearly in favour of strike action but ignore the fact that the procedural way in which the ballot was conducted was against the current law. They fail to understand why the procedures are there. They are there for good reason.
Jacob Rees-Mogg
I thank the Minister for giving way with characteristic graciousness. Does he agree that not requiring the trade unions to stick to a rigorous programme risks their going back to the 1970s? All of us have memories of mass meetings, Red Robbo and the will of the membership being entirely overlooked by terrible abuse of procedure, using the law as it then existed to its utmost to stop members having their say. The law as it stands prevents us from going that way again.
Mr Davey
I agree. I put it in another way, which complements the argument that my hon. Friend is making. I think that progressive trade unions welcome the law as it is. It ensures that their reputation, the way they work and their relationship with members is protected because they can show that they have gone through the right procedures. That improves their reputations with not just their members but the public, so I ask Labour Members who support the proposed change to reflect on the long-term implications for trade unions if we went down that route.
Every union must ensure that it has a good grip of the procedures when it enters disputes and that those procedures are professionally run. I do not think it is unreasonable to ask them to ensure that their information systems and membership records are as accurate as possible, using the vast power of information technology currently at our disposal. I suspect Opposition Members would be as intolerant and unforgiving as I am if organisations in other walks of life failed to keep accurate records or provided mistaken advice or a second-rate service. We should expect high professional standards from trade unions, just as we expect the same high standards from others.
The truth is that the previous Government understood that. From their extensive political contacts with unions, they knew there were problems with how some of them were managed. I suspect that they believed union leaders were a mixed bag in terms of their professional competence. That is why they argued for, and introduced, the union modernisation fund. They wanted to inject public funds into unions to bring them up to scratch. Millions of pounds were spent on projects to update membership databases, adopt new technologies and inject modern managerial methods into the running of trade unions.
Mr Davey
My hon. Friend makes a good point. The Court of Appeal thought about that carefully in coming to its judgment, but I would not want to go any further and say the law has to be tightened up in that way, because the judge’s statements are already quite helpful. I see the thrust and power of my hon. Friend’s argument, however.
If the UMF had worked as intended, it should have rectified the deficit in this area. I suspect, however, that problems remain and inefficiencies persist. While we all need to make sure that unions can try to reform in that area, I do not think the law should be relaxed to preserve poor methods of working within unions. Rather, it should be designed—as, by and large, it is—in the expectation that trade unions will run themselves efficiently and spend the money they collect well; their total annual income is more than £1 billion.
The current law not as rigid as the Bill’s supporters suggest. At virtually every point, the provisions are designed to take account of the fact that trade unions, just like any other organisation, do not have perfect knowledge and complete information at their disposal. Many provisions in the law are flexible enough to take account of what is “reasonable” or “reasonably practicable” for the unions to achieve.
Let us take the example of the law on ballot notices, which is a major part of the Bill. I know trade unions criticise these provisions a lot. Obviously, notices need to convey information, but according to the law—section 226A of the 1992 Act—that information needs to be
“as accurate as is reasonably practicable in the light of the information in the possession of the union at the time”.
That is not an onerous condition, and it is because of those sorts of conditions in the current law that the unions have won a number of cases in this year alone.
Jacob Rees-Mogg
The Minister is being enormously helpful to the House by taking so many interventions.
Is this not the absolutely right and just application of the legal maxim that the law is not concerned with trifles?
Jacob Rees-Mogg
It was quoted from the other side of the House in Latin: de minimis non curat lex.
Mr Davey
I am afraid I only did Latin O-level, and I have forgotten a lot of it.
Turning to the notices informing the voters and the employer of the outcome of the ballot, sections 231 and 231A respectively require only that the union take, as
“soon as is reasonably practicable after”
the ballot,
“such steps as are reasonably necessary”
to inform all persons entitled to vote and every relevant employer of the outcome.
The Bill’s supporters also believe that the law loads the dice in favour of the employer. According to their analysis, the law makes it difficult, and even impossible in some cases, for trade unions to defend the interests of their members—but, again, where is the evidence that the strike weapon has lost its potency, if used responsibly? The level of industrial action varies from year to year, but in the past 12 months for which data are available about 620,000 days were lost through industrial action. I would like that figure to fall, but such levels of industrial action in the UK are about the average for the EU overall, when allowance is made for the size of each country’s work force. In 2007, the latest year for which EU data are available, EU countries lost, on average, 34 days through industrial action per 1,000 workers. The UK figure was similar, although a little higher, at 38 days per 1,000 workers. That does not suggest that the UK laws on industrial action are out of step or are more difficult for British trade unions to navigate than laws elsewhere in the European Union.
Mr Davey
I certainly agree with my hon. Friend that were we to pass this Bill, it would not help the economy, in its current fragile state, to recover. There would be a danger of more strike action and that is not something that we want.
The courts are helping to develop everyone’s understanding of the practical applications of the law. Let us take the case of Metrobus v. Unite, which is something of a cause célèbre in union circles, and which centred on the time taken by the union to inform the employer of the outcome of a ballot. The employer, of course, has an intense interest in knowing the ballot result. The law therefore specifies that the union should notify the employer as soon as reasonably practicable. In this case, the court considered that the union should have informed the employer sooner. I can understand that the ruling may have inconvenienced Unite, but the ruling sets a clear standard for all unions to follow in future. There should therefore be less uncertainty and fewer legal complaints on that issue, as my hon. Friends have argued.
Let me turn to the detail of the Bill. As I said at the beginning of my response, the Bill amends section 232B of the Trade Union and Labour Relations (Consolidation) Act 1992. That section was inserted in the 1992 Act by section 4 and schedule 3 of the Employment Relations Act 1999. Several years later, in 2002 and 2003, the previous Government reviewed the practical operation of the 1999 Act. As a result, section 232B of the 1992 Act was slightly amended. Those amendments were introduced by the Employment Relations Act 2004.
So what does section 232B do? Its provisions enable the courts to disregard small failures by a trade union to comply fully with certain legal provisions concerning the organisation of an industrial action ballot. Those failures concern the requirements set out in four places in the 1992 Act. The first of those is section 227(1), which defines those who should be accorded an entitlement to vote by the trade union. The second is section 230(2), which places an obligation on the trade union to ensure that those entitled to vote are provided with a voting paper by post and are given a convenient opportunity to vote. The third is section 230(2B), which deals with the corresponding obligation on trade unions to ballot those persons entitled to vote who are merchant seamen. The fourth provision relevant to the disregard is 232A(c), which deals with the obligation on trade unions not to induce a person to take industrial action if that person was not accorded an entitlement to vote in a ballot.
The disregard applies to a small failure or failures to comply with those particular provisions. “Small” is defined as
“on a scale which is unlikely to affect…the result of the ballot”,
and the measures also apply if “the failures taken together” are on a scale that is unlikely to affect the result of the ballot. That test has a strong quantitative component, and it can therefore be used as an objective measure, so the test is relatively easy to apply in practice. Importantly, section 232B applies the law only to “accidental” failures by the trade unions. We have heard quite a lot of comments on that point.
As I have said, the original provision of the disregard was reviewed by the previous Government in 2002 and 2003, and after a detailed and thorough review, they were basically content with the operation of the disregard. They also concluded that other changes they had made to industrial action law had operated broadly as intended, so let hon. Members be in no doubt: the last Government saw no need for provisions such as those in the Bill. Having considered the case for them, and having reviewed them extensively on more than one occasion, they rejected the case for the amendments before the House.
So what are the proposed changes to section 232B? There are four major amendments proposed. I say “major”; the title of the Bill refers to “Minor Errors”, but we are talking about major ones. First, the Bill would apply the disregard to many more provisions in the 1992 Act. I counted that the disregard would apply to every aspect of 15 separate sections of the 1992 Act. In combination, those sections specify virtually all the procedures that trade unions must follow when organising industrial action. The disregard would apply to the running of ballots and to the notices that trade unions must provide to the employer or employers concerned before an industrial action ballot and before any subsequent industrial action. That, by any standards, is a substantial change to section 232B.
Secondly, the changes would remove the requirement for the failure by the trade union to be “accidental”. It would be replaced by the notion that the disregard applied where there had been “substantial compliance” with the provision or provisions in question. That therefore leaves open the possibility that the disregard will apply to situations in which the trade union knowingly makes a mistake or deliberately decides to flout the safeguards in the Act. We could not accept that change.
Thirdly, as the disregard would be extended well beyond the balloting provisions, we would be introducing a new way of defining the size of the failure to which the disregard applies, where the failure concerns a notice. In such cases, the disregard applies if the failure
“is unlikely to affect a reasonable person’s understanding of the effect of the notice”.
That alone raises many questions that are totally unanswered by the Bill.
Fourthly, the Bill places the burden of proof on the employer or other complainant to demonstrate that the failure does not qualify for the disregard. In other words, it is assumed that any failure by the trade union will be small scale and therefore covered by the disregard, unless the complainant demonstrates otherwise—a significant shift in the law, with a new presumption in favour of the trade union.
Earlier in my speech, I identified concerns that the Government have about the overall case for introducing this Bill. But, even if we were to assume that there is a compelling case for some changes to be made to section 232B, the Government would have serious misgivings about the way the Bill would amend the section. We cannot accept that the disregard should apply to every one of those 15 sections. That would be a major extension of the disregard and cannot be considered a modest measure. Just by way of example, the disregard would extend to section 230(1)(a), which provides that union members should be allowed to vote without interference from, or constraint imposed by, the union or any of its members. Where is the interest in allowing errors with respect to this safeguard?
Jacob Rees-Mogg
As I said earlier, this would be a slippery slope. It is an attempt to take trade union law back to where it was in the 1970s. It would run a coach and horses through the attempts since then to ensure democracy, control, proper procedures and orderly ballots. It is a frightening little Bill that attempts to undermine all that in just two clauses.
Mr Davey
As I looked in detail at the Bill, I became increasingly concerned. I thought initially that it might be something with which we could engage seriously and examine the possible need for reform. But if one forgets the title and looks at what is actually proposed, one realises that it is a significant attempt to shift the law in a direction we do not want it to go.
Jacob Rees-Mogg (North East Somerset) (Con)
Listening to the debate on the Bill since just after Prayers this morning has been of great interest, as have the points that have arisen and been made by hon. Members on either side. However, I ought to start with a point made by the hon. Member for Hayes and Harlington (John McDonnell), who said that we were in some kind of new politics. I think we should be very suspicious of that phrase, because if we look at the annals of history, as I know the House likes to do from time to time, we will see that every generation looks back at the past, and says, “That was a golden age, an age when they knew what to do and did things right and properly. And now look at the times we live in! O tempora! O mores!” as the great Cicero so famously said. He lived in the time of Julius Caesar, so people were making that complaint back in the 50s BC.
It seems to me to be wrong to expect the procedures of this House to be adjusted for some absurd new politics. As we all know from the book of Ecclesiastes, there is nothing new under the sun. That is actually right. Politics is never new or old; it is always the same. People want to get what they want and use strategems and sometimes even tricks to get it. We may be shocked at the tricks, but that is the reality.
The hon. Member for Hayes and Harlington said on a point of order that the will of the House was not being shown, but I think it was. The vast majority of the House decided that, actually, the Bill was not of sufficient importance to warrant their attendance.
Mr Nuttall
My hon. Friend makes an interesting point. The Bill’s title was designed to encourage exactly that response from Members. To be fair to them, I can quite appreciate that they would look at that title and think, “There’s not much here, move along,” but in fact, when we study the detail of the Bill, we find that it is a very substantial piece of legislation indeed.
Jacob Rees-Mogg
My hon. Friend is absolutely right. I was about to say that his speech reminded me of an age of politics when things worked. His was the form of speech that this House was used to when it was at its greatest, when it was the House from which legislation came that ruled an empire and a quarter of the world.
Mr Deputy Speaker (Mr Nigel Evans)
Order. My education is furthered every time I listen to you, Mr Rees-Mogg. I am more of an expert now on Cromwell, Cicero and a lot of other great historical figures, but I was wondering whether there was any vague possibility of addressing the Bill before the House today.
Jacob Rees-Mogg
Mr Deputy Speaker, I was referring to the opening remarks of the hon. Member for Hayes and Harlington and following up on those, as I now wish to follow up on the remarks made by my hon. Friend the Member for Bury North (Mr Nuttall). His speech was in a fine tradition of the House. In the 19th century, speeches of two and a half hours were common. I do not know whether the hon. Member for Bolsover (Mr Skinner) was here for the Don Pacifico debate—[Interruption.] I am pleased to hear it. The great Palmerston spoke for two and a half hours in that debate, and I feel that my hon. Friend the Member for Bury North is becoming Palmerstonian in his approach to the House.
It is important that our procedures are respected and that they operate fairly and properly. Part of that procedure is that if 100 do not go through the Division Lobby to support a closure motion, there can be no closure. That is perfectly justifiable, and it ought not to be brushed away by some airy-fairy talk of new politics.
Jim McGovern (Dundee West) (Lab)
I am grateful to the hon. Gentleman for giving way, but I am not quite sure that I am so grateful for his history lesson. When he talks about these days past and the British empire and so on, does he mean when working-class people knew their place?
Jacob Rees-Mogg
The hon. Gentleman is trying to lead me astray. Mr Deputy Speaker asked me not to carry on talking about history, but I disagree entirely with the hon. Gentleman’s point.
On the specifics of the proposals, we have to look at the Bill in its context. We need not go back to the great strikes of early history. I was thinking initially of Achilles sitting in his tent and about whether that was a first example of industrial action and the withdrawal of labour, and about whether we should get on to Patroclus and so on, but I thought that would be too abstruse at this time in the afternoon. However, the Bill is important because it would take us back to the industrial relations of the 1970s and 1980s, so the immediate historical context is of tremendous importance. I remember growing up—I was a child once, although I never normally admit to it. We had a wonderful debate the other day with all sorts of people saying they had once been 16. I sat here wondering whether I had ever been 16 and hoping that it had passed by quite quickly. However, when I was a child, I saw the streets, including Leicester square, used as a dumping ground for rubbish because of strikes. They were strikes that had been called not with any democratic oversight, but because unions had the ability to bully their members.
The great lady, Margaret Thatcher—Baroness Thatcher, Lady of the Garter—came in and pulled this country up by the scruff of its neck. She introduced legislation, which was opposed every time by the socialists—they opposed everything she did—to democratise the trade unions and bring them under the control of their members and to allow this country to be run by its democratically elected Government, rather than by the grand, godfather-like bosses of the trade union movement. Anything that takes us back to those days would be desperately unfortunate and risk our seeing the same number of strikes that we saw in the 1970s and 1980s and the destruction of British industry.
Our car manufacturing was destroyed by strike after strike called from mass meetings. Do hon. Members remember those mass meetings? Do they remember watching them on the television? Do they remember the voice votes controlled by a few bullies? A hand or two would go up, but they would never be counted. That was the type of behaviour we had in this country before the laws that Margaret Thatcher introduced. That put us back on to a proper footing, where prosperity could arise, commerce could take place and business could flourish. We saw the launch pad built for an amazing economic performance that was no longer being destroyed by the trade unions.
Philip Davies
Does my hon. Friend agree that there is further to go down this route, and that if we are trying to make potential strike action fairer, which seems to be the purpose of the Bill, we should instead be providing that more than 50% of those balloted, rather than just of those who voted, have to have voted for strike action before a strike is called?
Jacob Rees-Mogg
My hon. Friend knows that I have an affinity for thresholds in other circumstances. Obviously, I am not going to talk about that, because it is not germane to the Bill, but I think it right that a sufficient number should express their will for a ballot to be valid, and that while we are debating Second Reading, we ought to think about what else it could have said, had it been a better Bill—a Bill that the House might have liked and approved on Second Reading. It could have contained further reforms to give power back to the members. I actually believe in the slogan used by Baldwin for his election: “Trust the People”. The people are the masters of their politicians, and they know what is best for them, and the greater the democracy in trade unions, the better it is for their members.
I was struck by the Minister’s comments that the Bill would make 15 sections of the Trade Union and Labour Relations (Consolidation) Act 1992 subject to accidental mistakes and a broad interpretation. Does that not make the hairs on the backs of hon. Members’ necks stand up, when they think of what has gone before, and when they think of the possibilities for manipulation and for people to stand over others as they fill out their ballot papers? Perhaps it would be done in the canteen. Perhaps one person would gather everyone together, and if only 20% of the vote went astray, nobody would mind. It would not be substantial; it would be a minor error, a small failing, a little bit on the side.
Andrew Bridgen
Does my hon. Friend agree that were the Bill to become law, it could be viewed by a vast number of unions and union officials, who are quite capable of running a ballot in line with the current regulations, as a complete insult to their intelligence?
Jacob Rees-Mogg
My hon. Friend is absolutely right. If a union cannot run a ballot properly, that is a disastrous state for that union to be in, but people use the mechanisms to hand. We should always be suspicious—always cautious, always careful—about allowing exemptions, because as soon as we do, people work out how to use them for a purpose other than that which was initially intended. That is why legislation in this place needs to be so properly considered—and considered in due and appropriate detail—because when it is not, people might actually believe the title of the Bill, which I come back to.
As the Minister so rightly said, the title refers to “Minor Errors”. Clause 2 deals with the short title, and although I doubt whether the short title of a Bill should very often be a contentious matter, on this occasion I think that it is. I do not think that the Bill ought to be called the Lawful Industrial Action (Minor Errors) Bill. If passed, it should be called the Lawful Industrial Action (Coach and Horses) Act 2010, because that, as I said in an intervention on the Minister, is what it would do to the law as it stands. The Bill would get rid of so many safeguards, and this House is here to safeguard the British people—our electors—not just from over-mighty government, but from over-mighty private organisations that may wish to use and abuse their power.
Philip Davies
On that theme, does my hon. Friend agree that one thing that the Bill does not address is the damages that have to be paid by unions that call for action that is later found to be unprotected? Damages are capped at £250,000 in those cases, whereas the strikes at BA, for example, cost BA £40 million.
Jacob Rees-Mogg
My hon. Friend makes an extraordinarily good and wise point. This would have been a better Bill if it had sought to raise that cap and made unions responsible for their unlawful errors.
Jane Ellison (Battersea) (Con)
As I might not get the chance to make my own contribution, I wonder whether my hon. Friend shares my concern that, throughout this debate, this new concept of “substantial compliance” has not been properly addressed. It has been introduced to us in this small, “minor-errors Bill”, but it is actually a big idea and quite a concerning idea. However, at no point has anyone on the Labour Benches risen to make any attempt at giving us a definition. This debate would have been a great deal more substantial had someone attempted to put some flesh on the bones of that small phrase.
Jacob Rees-Mogg
My hon. Friend is spot-on. We had a discussion about that on this side of the House. My hon. Friend the Member for Dover (Charlie Elphicke) elucidated for us what was meant by “substantial”, and said that in law, it meant an 80:20 level. I am not lawyer, but I was interested by that.
Jack Dromey (Birmingham, Erdington) (Lab)
The hon. Gentleman’s knowledge of members is presumably that of the Carlton club and his knowledge of the shop floor presumably that of Fortnum and Mason. Does his knowledge of the law lead him to understand the jurisprudential concept of de minimis non curat lex?
Jacob Rees-Mogg
I am so grateful to the hon. Gentleman for making that point, which is one that I made to the Minister myself, when sadly he was not present. Indeed, the Hansard reporters asked me to spell it out, so the hon. Gentleman will notice that it is in Hansard tomorrow. De minimis non curat lex is, of course, a right and just principle, but it is in existing law. The question of what is “substantial” is the important one, and an 80:20 test is deeply unsatisfactory, because it simply allows too much impropriety to take place.
For the benefit of the hon. Gentleman, who is interested in my clubs—I believe that I am allowed to answer this point, Mr Deputy Speaker, as it was raised in an intervention—I should add that I am not a member of the Carlton club, although I think it is in a very fine building and has an excellent membership, and that I think that Fortnum and Mason is a very fine shop, and would be very happy to place that on record.
I would like to return to the Bill.
Andrew Bridgen
In the light of the interventions from various Labour Members, does my hon. Friend agree that pretending that only they care about workers’ rights is a fallacy? My great-grandfather was one of the founders of the union movement. My grandfather was a miner, and my other grandfather—