Lawful Industrial Action (Minor Errors) Bill
Debate between Jacob Rees-Mogg and Ed Davey(14 years, 2 months ago)
Commons ChamberRead Full debate Read Hansard Text
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.
Canterbury City Council Bill
Debate between Jacob Rees-Mogg and Ed Davey
Mr Davey
Many hon. Members have come to the Chamber tonight to listen to the hon. Gentleman and the hon. Member for Christchurch, who are now renowned experts on such matters. They will have many followers and admirers in the honourable profession of pedlary for their efforts.
I was explaining how the new Government wish to pull off the different balancing acts. One issue raised by the Bills that we will consider as we respond to the consultation is the balance between ensuring healthy competition, whether among pedlars, street traders, static traders or ordinary retailers, and safety in congested, narrow streets. I have not heard anyone deny that those are genuine issues, but those who have valiantly defended the rights of pedlars are concerned that too much can be made of safety. They are worried that safety leads to protection by the back door and that it can be used to hinder genuine competition. We need to reflect carefully on that. We want to be sensitive to the different natures of our ancient towns and our more modern towns. We shall seek to strike that delicate balance as we respond to the views that we receive, for which we are grateful.
Jacob Rees-Mogg (North East Somerset) (Con)
Is not there always an argument for more regulation and laws, and for taking away the liberty of the British subject? Is it about time that we had a deregulating Government, which I hope the coalition is, who stop piling law upon law upon us? A great and noble Liberal, Lord Palmerston, said that we would run out of things to legislate about, and sadly, that day has not yet come.