Trade Union Bill

Debate between Jo Stevens and Nick Boles

Ping Pong: House of Commons
Wednesday 27th April 2016 Commons Chamber

[Nick Boles]

I am sure that the hon. Gentleman will understand that I never comment on articles in the Socialist Worker. He will also understand that we have regular conversations with Ministers in the devolved Administrations, but all of the matters addressed in this Bill are reserved matters. It is a matter not of dictating, but of this Government fulfilling their duty to legislate on the matters for which we have exclusive responsibility.

[Jo Stevens (Cardiff Central) (Lab)]

Specifically on the point about devolved powers, is it not the case that in that letter the Minister received legal advice saying that there is a very weak case for enforcing those powers on the Welsh Government?

[Nick Boles]

The hon. Lady, who made an admirable and, for me, rather challenging contribution to our deliberations in Committee, knows that we do not comment on legal advice.

If publication, and the proper monitoring and recording that it necessitates, do not achieve the aim of bringing excessive spending on facility time back down to a reasonable level, it will be necessary to consider the imposition of a cap. A reserve power is very much a power of last resort.

Trade Union Bill (Ninth sitting)

Debate between Jo Stevens and Nick Boles

Tuesday 27th October 2015 Public Bill Committees

[The Minister for Skills (Nick Boles)]

It is a pleasure to be starting what I hope will be the final day under your chairmanship, Sir Alan. Sometimes during this debate it strikes me that the two sides of the Committee are discussing completely different pieces of legislation. Both Opposition parties portray the Bill as one of the most egregious attacks on fundamental human rights since King John, whereas I would describe it as, to borrow a phrase from the previous speaker, a NALGO Bill, in that there is not a lot going on.

What the Government are proposing here is nothing more than a set of provisions that seek to change behaviour within the public sector. After all, the public sector is funded by taxpayers: they go out to work to earn money and they pay taxes, so they have a right to see that money spent responsibly. We hope that, in the light of public scrutiny of the information relating to facility time that public sector employers will be required to publish under clause 12, public sector employers will voluntarily renegotiate their existing facility time arrangements with trade unions and bring their spending on taxpayer-funded facility time under control.

We could, of course, have legislated now for a cap, so the idea that the clause, to cite another famous monarch, is a Henry VIII measure, an egregious attack, is false. We have heard a lot about the constitution in recent hours. We could have legislated for a cap now and no doubt the Opposition would have attacked that. We have taken the more modest route of suggesting reserve powers, which—the clue is in the name—will be kept in reserve and used only as the last resort. Only if transparency shows unacceptable inefficiencies in relevant employer spending on facility time and poor value for money for taxpayers from existing facility time arrangements with trade unions will Ministers set a cap on the time and money spent on facility time.

Amendment 101 would prevent the reserve powers being exercised so as to effect changes to a contract of employment or collective agreement, or limit the relevant employer’s discretion as to the contents of the contract or agreement concerned. The amendment would, in effect, neuter any consequential provision that regulations could make amending or otherwise modifying contracts of employment or collective agreements. As I have said, it is by no means certain that the reserve powers will ever be exercised and, should they be exercised, it is also by no means certain that this would interfere with, or override, existing contractual rights and rights under collective agreements. Most union representatives do not have contractual rights to facility time over and above their statutory rights, which we are not seeking to change.

[Jo Stevens (Cardiff Central) (Lab)]

What legal advice has the Minister received as to whether this proposal for a cap conflicts with EU law, with TUPE law or with the Information and Consultation of Employees Regulations?

[Nick Boles]

We keep going around this merry-go-round. The Government receive a great deal of legal advice from their own officers and sometimes they seek other advice. We do not publish that advice; we are satisfied with the compatibility of all our proposals with all the laws and treaties to which we are signed up. Any cap on facility time will only apply prospectively. It is, on the other hand, possible in theory—though, as I have said, unlikely in practice—that a cap may apply to ongoing, legally-binding relationships; either legally enforceable terms in a collective agreement, or in the contractual rights of individual employees. This is what is flagged in the European convention on human rights memorandum to the Bill. The Government acknowledge, however, that even the potential impacts upon pre-existing contractual arrangements should be fully debated. That is why we considered the affirmative procedure to be necessary to provide the correct level of parliamentary scrutiny.

Before asking hon. Members to withdraw their amendment I want to respond to a question, which is not specific to this amendment, about the devolution settlement. The devolution settlement does not define which individual Ministers in the Government can do things. It defines which areas of policy are devolved and which are not. We have established, and there is general consent—although it might well be wished otherwise—that employment law is not a devolved policy but a reserved policy, and therefore Ministers in the UK Government are entitled to exercise those reserved powers in relation to their responsibilities. That does not imply that, say, the Secretary of State for Health, would be breaching the devolution of health to the Scottish and Welsh Governments by exercising the reserve powers under employment law in the way that we have outlined.

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[Nick Boles]

I am certainly trying my best to ensure that the regulation of trade unions is more effective than the regulation of the financial services industry preceding the 2008 crash. I do not think that the risks are as great, and I have been the first to point out that it is unlikely that the trade unions, which mostly do an excellent job, will crash the economy in the way that the under-regulated financial services industry did under the previous Labour Government. Sir Alan, I think you are going to say that I am moving away from the point, so I will return to it.

The clause enables regulations to be made so that the certification officer can charge a levy on trade unions and employer associations.

[Jo Stevens]

Will the Minister give way?

[Nick Boles]

I am going to make some progress.

It is important to understand that employer associations are also subject to the levy. The Bill does not prescribe the amount of the levy because the certification officer is independent. It is for the certification officer to decide each year how much they need to charge to cover the costs of performing their functions. We have taken the approach of providing a regulation-making power, rather than setting out in the Bill exactly how the certification officer is to determine the amount of the levy, because the Bill expands the certification officer’s role. It is only once this new expanded role is established that it will be possible to determine precisely how the regime should work. Having said that, we also recognise that Parliament and those directly affected rightly expect to see how the regime will work when Parliament is being asked to agree the detail of the legislation. That is why the Bill sets out specific parameters for the content of the regulations. It is also why the regulations will be subject to the affirmative procedure. The clause also requires consultation before any regulations are made.

To meet our objective of cost recovery, the levy must be enough to cover the cost of the certification officer’s functions, but it cannot be any more than the certification officer needs. The certification officer cannot make a profit from their activities, nor undertake spurious activities to generate funds. That is only right as the certification officer is an independent public appointment and not a commercial enterprise.

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[Nick Boles]

The hon. Gentleman is entitled to speculate on any figure he likes, but we are going to leave it to the independent certification officer to assess the additional requirement and to set an appropriate levy.

We recognise that trade unions can vary greatly in size and that employers associations are often small, meaning that the size of the regulatory functions provided by the certification officer to such organisations may vary greatly. Smaller unions and employer associations may require less of the certification officer’s time and resources.

[Jo Stevens]

I am pleased to hear that clarification about employers organisations. Will the Minister tell us whether federated employers organisations, such as the CBI, will be covered by the measure?

[Nick Boles]

My understanding is that federated employers associations will not be covered, but all other employers associations will be.

We want to be able to consider whether organisations that use more of the certification officer’s time should bear more of the cost. We will need to consult before determining whether that is the right way to proceed and will only take that approach if we find during consultation that it costs more for the certification officer to regulate larger organisations that it does for smaller ones.

Let me conclude by summarising the safeguards in the Bill on the way the levy is to operate: the amount of the levy will be limited to covering the cost of the certification officer functions; ACAS, unions and employer associations will be consulted before regulations are made; the regulations will be subject to the affirmative procedure, allowing a full debate in Parliament before they are brought into force; and the certification officer will be required to report annually on the amount levied and how that was determined, which will be published and laid before both Houses, ensuring transparency.

Question put, That the amendment be made.

Trade Union Bill (Tenth sitting)

Debate between Jo Stevens and Nick Boles

Tuesday 27th October 2015 Public Bill Committees

[The Minister for Skills (Nick Boles)]

I want to clarify a point that was made just before we adjourned this morning. The hon. Member for Cardiff Central asked whether federated employer associations such as the CBI will be covered by the levy, and I said no. Indeed, it was narrowly correct to say that because the CBI will not be caught by the levy, but it may help the Committee if I provide a little more context to my answer.

Federated employer associations would be covered by the levy, provided that they meet the statutory definition in the Trade Union and Labour Relations (Consolidation) Act 1992. The certification officer keeps a list of employer associations that have asked to be listed, as well as a schedule of those that have not applied to be listed but that the certification officer considers meet the statutory definition. The CBI is not listed, so as it stands the levy will not cover an organisation of that type. It will continue to be left to the certification officer to decide who meets the definition in the future. I will be happy to write to the hon. Lady if she would like further clarification on the statutory definitions in the 1992 Act and how they apply in practice.

[Jo Stevens (Cardiff Central) (Lab)]

I am grateful to the Minister. If he could write to me, that would be good.

Question put, That the clause, as amended, stand part of the Bill.

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[Jo Stevens]

It is a pleasure to serve under your chairmanship for the final Committee sitting, Sir Edward.

In tabling the new clause on check-off, the Government seem extremely concerned to bring trade unions into the 21st century. For the second time in Committee I am forced to admit that I agree with the Minister—not on the content of the new clause, but on the aim of modernisation. The Government seem to believe that paying union subscriptions online, via a bank account, is an acceptable facet of 21st-century trade unionism, but that secure online balloting is not. We must ask ourselves why.

I had an inkling of that while looking back through a 2011 Conservative Home column—I have very exciting evenings—which, thanks to a quotation from the then Under-Secretary of State for Communities and Local Government, specifically tied the issue of check-off to the collection of a political levy. That makes me wonder whether the motive for the new clause has more to do with that issue. About 3.8 million public sector workers could be affected by the proposed changes, yet there is no groundswell of demand for the changes from anyone other than the Conservative party.

I want to set out a few inconsistencies to highlight how the new clause does not make sense. I have mentioned the Government’s hypocrisy in opposing online balloting, so I begin with the fact that the use of check-off is voluntary. No employer has to offer it. As with facility time, the right should be with the employer to decide whether the practice benefits their workforce or not. In the case of local government and the devolved Governments in Wales and Scotland, the Westminster Government are imposing top-down solutions to problems that do not exist on the ground.

Secondly, this is not about taxpayers’ money. In many instances, as we have heard, trade unions pay for the very small cost of administering check-off. As the Minister has pointed out, this is the 21st century: payroll is automated. As Unison noted it its written evidence to this committee, the former Chief Secretary to the Treasury in the coalition Government wrote to stop attempts to end check-off, saying that,

“Departments should be aware that there is no fiscal case for doing this, as the Unions have offered to pay any costs associated with check-off, which are in any case minimal”.

As the hon. Member for Glasgow South West mentioned, Unison general secretary Dave Prentis gave us evidence on 15 October about check-off arrangements and gave numerous examples of arrangements that Unison has in place where it either pays for the check-off system, or the employer that the union works with makes money out of it. He named Fife Council, East Lancashire hospitals, Bradford City Council, and Derbyshire County Council, to name a few. If cost really were the issue here, surely the appropriate response is to ensure that the costs are met, rather than to entirely abolish the system.

That brings me to how check-off is used by other organisations. From animal welfare to cancer charities, from helping the homeless to children’s organisations, payroll giving is commonplace. Workplace Giving UK says that it is the most efficient way to give to charity—it works with huge charities such as the Stroke Association and Macmillan. The Payroll Giving Centre claims that over 8,000 employers use the system, with over 1 million people donating from their salaries. It is efficient and easily understood, yet while this system of giving seems set to continue and indeed expand for charities, it is being removed for trade union members.

Finally, on transparency and accountability, check-off ensures that members do not continue to pay their subscription after they have left employment. It is a very clear and easy way for a member to pay subscriptions when in employment but not to continue doing so when they leave their job. Taken with other sections of this Bill, this new clause contributes to a new, sprawling and costly bureaucracy that is being put in place with the sole aim of impeding the ability of trade unions to organise politically and industrially. This is all that this is.

We oppose the new clause and the Bill, but if the Minister really wishes to demonstrate that he is serious about modernisation, I urge him to withdraw the new clause and instead bring forward measures to ensure that taxpayers’ money is not spent on check-off, if that really is his concern, and to specify that trade unions pay for the facility themselves, as many already do.

[Nick Boles]

I will start by answering some of the questions raised by Opposition Members. There was a question about the transition period and how long trade unions with check-off arrangements would be given to move people over to direct debits. My right hon. Friend the Minister for the Cabinet Office has suggested that a transition period of six months from commencement of the provisions on check-off would be appropriate.

Trade Union Bill (Seventh sitting)

Debate between Jo Stevens and Nick Boles

Thursday 22nd October 2015 Public Bill Committees

[Nick Boles]

Before I address the detail of the amendment moved by the hon. Member for Cardiff South and Penarth, let me state clearly that the Government recognise peaceful picketing as an entirely lawful activity. People must be able to exercise their rights to assemble and to freedom of expression. The Bill does not change any of that. The law has been developed in order to protect such rights. It provides unions with statutory immunity against claims for damages to enable individuals to peacefully persuade others to break their contracts.

The rights to assemble and to freedom of expression are rights that apply to all of us. That is the whole point. I am confident that the hon. Gentleman will agree that that right should not be exercised by some at the expense of others. We cannot defend picketing being used as an opportunity to intimidate people who exercise the same rights to freedom of expression and of assembly, which, in their case, is the right to disagree with the union’s position when it is in dispute with the employer and to go into work.

The Bill will require unions to supervise picketing. The main requirement is to appoint a picket supervisor. That provision is in the code of practice on picketing, which states:

“Wherever picketing is ‘official’ (i.e. organised by a trade union), an experienced person, preferably a trade union official who represents those picketing, should always be in charge of the picket line.”

The code also states that picket organisers should ensure that

“the pickets understand the law and are aware of the provisions of this Code, and that the picketing is conducted peacefully and lawfully.”

That provision has been in the code of practice for more than 20 years, and no representation has ever been made that expecting people to abide by it represents an infringement of their freedom. The code provides further detailed guidance on the functions of the picket supervisor that, if followed, should result in peaceful picketing.

The hon. Member for Cardiff South and Penarth and his hon. Friends have said that unions already adhere to the code of practice on picketing, and we have always agreed with that point—indeed, the consultation made that clear—but it does not always happen. For example, Transport for London told the Carr report:

“Conduct on the picket line towards employees not participating in industrial action can be aggressive. The word ‘scab’ is often used. Frequently we have seen swearing and shouting directed at an individual”.

Such behaviour is just not excusable. The picket supervisor therefore plays an important role in ensuring that pickets understand that such behaviour is not in accordance with peaceful picketing.

[Jo Stevens]

Can the Minister tell us whether any arrests were made in that TfL example?

[Nick Boles]

I do not have that information to hand, but I am happy to write to the hon. Lady, and obviously to copy in the rest of the Committee, on that question.

The appointment of a picket supervisor comes from the code; it is not new. The other provisions in the code will continue to guide the picket supervisor and the pickets to ensure that the conduct of picketing is peaceful. Where the picketing is peaceful, the union’s statutory immunity will not be compromised. I make it clear that an individual who breaks the law on the picket line is responsible for their own actions—the union is not responsible—but it is important that we take steps to ensure that picketing activity does not resort to intimidation in order to obtain support for a dispute.

The amendment would instead limit the appointment of a picket supervisor only to picketing that is organised directly by a union. Surely there should be no distinction between whether the picketing is organised or supported by a union. The law should apply to all picketing, without exception. The amendment would undermine the intended purpose of this clause by allowing a union to encourage picketing activity among its members without the supervision that I believe is necessary for the reasons I have set out.

The hon. Gentleman asked a specific question on whether the clause will prevent a union from expressing, online or somewhere else, solidarity in general terms with industrial action conducted elsewhere in the country, possibly by another union at an employer where the union expressing solidarity is not involved. The answer, of course, is no—that is freedom of speech—but where a union is encouraging picketing activity among its members without supervision, the application of this clause will be necessary. I hope that he will withdraw his amendment.

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[Nick Boles]

Before I move on to the detail of the amendments, I will highlight again that the main requirements of the clause relate to provisions that are already in the code of practice on picketing, that they have been in that code since 1992 and that almost all unions since then have seemed to be perfectly happy to abide by them. In relation to police contact, the code says:

“Whether a picket is “official” or “unofficial”, an organiser of pickets should maintain close contact with the police…In particular the organiser and the pickets should seek directions from the police on the number of people who should be present on the picket line at any one time and on where they should stand in order to avoid obstructing the highway.”

The code goes on to say:

“He should have a letter of authority from his union which he can show to the police officers or to the people who want to cross the picket line.”

Obviously it was drafted when there was less recognition of the possibility of a female picket supervisor. We might want to amend that in future.

[Jo Stevens]

Will the Minister give way?

[Nick Boles]

I want to make a little more of my argument, but of course I will be happy to take the hon. Lady’s intervention in a bit.

I turn first to amendment 28. To require in law that a picket supervisor contacts a senior-ranked police officer for this type of issue would be novel. I can find no precedent for such an approach. I am concerned about the potential practical difficulties for a picket supervisor being required to make contact with such a senior-ranking police officer as a chief constable, especially given that the purpose of the requirement to inform the police is so that they know which individual to contact in the event that a problem arises on the picket. That might be, for example, if the picket supervisor is absent from the picket at exactly such a moment.

There are only about 45 chief constables in Great Britain and they each have a wide portfolio of responsibilities. A picket supervisor may well not be able to contact a chief constable and, even if he or she did, the chief constable may not be able to respond quickly enough in such a scenario. That in turn could lead to problems for the union: for example, uncertainty as to whether a chief constable had indeed been informed could lead to doubt about whether the picketing can proceed and to legal challenge. That is why there is a broader reference to inform the police in the clause. That is more flexible. It will meet the objective and ensure that there is minimal delay for all concerned while still fulfilling data protection requirements. It is also important to recognise that that reflects the language of the code, which, to our knowledge, has not caused any problems.

There has been some commentary in the media about data protection concerns. The police are bound by the Data Protection Act 1998, including the principle that personal data must be processed fairly and lawfully. Any concern that the police have mishandled such data can be brought before the Independent Police Complaints Commission for its consideration. Complaints on data handling can also be brought to the Information Commissioner.

[Jo Stevens]

I do not accept that the Government are simply transposing the existing code of practice provisions into legislation. Even if I did accept that point, why is primary legislation necessary if, as the Minister suggests, the code of practice does not cause any problems and everybody is happy with it?

[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.

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[Jo Stevens]

rose—

[Nick Boles]

I am just going to move on, because we are never going to agree on this issue. I have stated my argument, and Opposition Members have stated their argument.

Let me move on to amendment 29 and the proposal of the hon. Member for Cardiff South and Penarth to remove the requirement to inform the police where picketing is to take place. Knowing the location of where picketing is to take place will help the police ensure that sufficient resources are available in the event of problems arising on the picket line. It will help the police to respond quickly and resolve any problems. This is not new. The code of practice on picketing sets out that a picketing organiser should establish advance consultation with the police and—I have already directly quoted from it—seek directions on where they should stand to avoid obstructions of the highway. The combined effect of those provisions is that the police will know where picketing will take place.

I understand that the hon. Gentleman is concerned that such advance notification could restrict the right to assemble. I assure the Committee that the Government fully recognise the right to assemble, but we also recognise other people’s freedom and their right to go about their business and move freely. Such rights need to be balanced, and the provision in clause 9 achieves that balance.

Amendment 104 seeks to amend the effect of clause 9 in a number of different ways, which I will address in turn. The purpose of clause 9 is to require union supervision of picketing. The appointment of a picket supervisor is the main mechanism by which that is to be achieved. The picket supervisor should rightly be a trade union official or a member of the union who is familiar with the union’s approach and the reasons for the industrial dispute with the employer.

The amendment would remove the clarity that the picket supervisor should be an official or a member of the union. It would have the effect of removing the provision that the picket supervisor to be appointed must be an official or trade union member who is familiar with the code of practice on picketing. This important point came up earlier in the debate, and I say again that the code sets out practical and pertinent guidance to ensure that picketing is conducted peacefully and lawfully. A picket supervisor’s familiarity with the code represents sensible and practical preparation for someone about to undertake the role of picket supervisor.



The amendment would further remove the requirement to inform the police of the picket supervisor’s name and contact details, and of where the picketing will take place. I have already referred to the importance of the police’s understanding of whom to contact, particularly if a problem arises on the picket line. Knowing where the picketing will take place will enable the police to attend quickly, should they need to. The shadow Minister made a good, sensible argument about the strain on police resources; indeed, that was reflected in the evidence given to the Committee. I would simply say that the adherence to these very measured and sensible provisions—about having a picket supervisor who knows what the code of picketing says and who has told the police his mobile phone number and where the picket is going to be—is what will minimise the need to call on police resources. If everything is there quickly and easily in the event that a problem arises, the need for the police to supervise, unless there is a problem, is removed.

Trade Union Bill (Eighth sitting)

Debate between Jo Stevens and Nick Boles

Thursday 22nd October 2015 Public Bill Committees

[Nick Boles]

I certainly accept that there can be different, legitimate views on this question. As I said in response to the previous debate, given that our system seems to be moving towards regular five-year cycles of political decision making, we felt that it was, if nothing else, neat to have a five-year cycle of decision making about contributions towards political funds.

A five-year renewal date balances the need for unions to have certainty about how much income they have for political activities against the need to ensure that a member’s decision to contribute remains current and relevant. We are also taking steps to remove the burden of different renewal dates on unions, and ensuring that future renewal dates are kept the same for all members of any union. We are therefore allowing for a five-year renewal notice to take place any time in the three months before the renewal date. The Bill also provides that where members who opt in during the six-month period before the five-year renewal, they should not have to renew their opt-in again at the renewal date. That prevents, for example, new members who have made a recent decision to contribute to a fund from having to renew their opt-in again very soon after.

[Jo Stevens (Cardiff Central) (Lab)]

Were we to move to a system of contracting-in to the political levy with five-year renewals, what is the case for retaining the political fund ballot every 10 years? Will the Minister do away with that?

[Nick Boles]

We have no plans to change that. If the hon. Lady wants to table proposals at the next stage in the House, I will be happy to engage with that question. Since she has not done so, I am not in a position to engage with it directly now—I am not sure it would be entirely in order to do so, although it is a perfectly legitimate question for her to raise.

To conclude, renewing the opt-in decision every five years will ensure that members’ decisions remain current.

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[Nick Boles]

I will try to reassure Opposition Members on a few points. They seem to be suggesting that this is somehow an egregious singling out of trade unions to require a level of transparency that does not apply to anyone else.

First, let me assure the hon. Member for Cardiff South and Penarth that employers associations will be covered by the provisions in clause 11. Even more importantly, companies are already required to declare the details of spending on political activity above £2,000 per annum and have been for a long time. To require the same of trade unions therefore does not seem unfair or unreasonable.

There is currently inconsistency in the level of detail provided in union returns on political expenditure. Some unions are transparent and provide detailed information in their annual returns to the certification officer. We want the example of those unions that provide clear information to be followed by all. That is why we propose that where political expenditure is more than £2,000 per annum, expenditure should be broken down to detail the different items of spending. An equivalent provision applies to companies.

[Jo Stevens]

It seems implicit from what the Minister has just said that the Government believe that some trade unions are not being transparent in their declarations. Is there any evidence to back up that assertion?

[Nick Boles]

We want to ensure that all unions are declaring everything above £2,000, which is what the provision states, and currently not all unions do so. Amendments 44 and 45 would undermine the transparency that the clause seeks to achieve.

Let me turn to amendment 98. We propose that the Secretary of State may make regulations to increase the amount from £2,000. That will ensure the legislation is future-proofed. The regulations will not allow the amount to be decreased, which would make the provisions more onerous; it can only be increased. I am a little puzzled by the shadow Minister’s concerns, because all that would do is change the level of granularity required in trade unions’ declarations to reflect either inflation or changing circumstances in society. I therefore him urge hon. Members not to press their amendments.

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[Jo Stevens]

The Minister mentioned facility time to attend union conferences. I do not think that is correct, and I seek clarification from the Minister.

[Nick Boles]

If I have information to give the hon. Lady now, I will do so before I reach the end of this speech, but if I do not, I will write to the Committee before our next meeting so that the matter can be raised if there are further questions.

Including information that the trade union would need to calculate whether it pays for its own representatives does not improve transparency about what is happening with taxpayers’ money, because taxpayers are not funding the union’s contribution. If the trade unions want to supplement an employer’s publication by providing information of their own, we would welcome that move towards transparency. Our purpose is to ensure that taxpayers receive value for their money, and placing such a requirement on the trade unions would not meet that aim.

Trade Union Bill (Fifth sitting)

Debate between Jo Stevens and Nick Boles

Tuesday 20th October 2015 Public Bill Committees

[Nick Boles]

The unions may have been confident, but their confidence was surely misplaced, given that in these cases the figures ranged from 16% to 21% for the people who actually bothered to vote, and that includes the people who voted against the proposed action. This is a problem and it affects members of the public.

[Jo Stevens]

Will the Minister give way?

[Nick Boles]

I will, I promise, take a whole range of interventions, but I just want a little time to make an argument in response to the eloquent arguments that we have heard from the hon. Lady and others.

There was a lot of discussion, quite rightly and properly, about the claim that we make that the indirect consequences, the indirect impact, of strikes can outweigh the direct consequences. There was some criticism—not entirely unjustified, in my view—from Opposition Members that no statistics are available to measure those indirect impacts. I hope that Opposition Members will be pleased to learn that I have therefore written to Andrew Dilnot, who runs the ONS, requesting that the ONS look into how it can capture the indirect impacts of strikes.

The shadow Minister makes great play of the fact that the number of working days lost directly due to strike action is relatively low by historical standards. Although he picks a period that particularly flatters the figures, I nevertheless accept the broad point, which is that the number of days lost directly to industrial action is relatively low, compared with some of the dark days of the past.

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[Nick Boles]

I am glad to say that it is a great deal more than that, but when a school is closed because of a strike supported by 22% of union members then, unfortunately, childcare is what parents have to be able to deliver.

[Jo Stevens]

My point is on the earlier remark about making slight tweaks to the current law. The Minister proposes to introduce a new concept in the Bill, which is to count abstentions as no votes. How can that be described as tweaking the current law?

[Nick Boles]

I do not accept the caricature. All we are saying is that, when action is proposed that will have a great effect on people—citizens and equal members of the public who have no vote at all in this ballot and who are not even consulted—it is not unreasonable to require a level of participation that is more than half. That will not stop most strikes, as we have seen from the figures, but it will reassure members of the public that strikes are happening only when they have sufficient support. The British people are fair. They believe in people having the right to strike and would always want to retain that possibility for themselves, but they feel that it is unfair when it happens, as that NUT strike or those other strikes that I listed did, on a very low turnout.

Trade Union Bill (Sixth sitting)

Debate between Jo Stevens and Nick Boles

Tuesday 20th October 2015 Public Bill Committees

[Jo Stevens (Cardiff Central) (Lab)]

rose—

[Nick Boles]

I am happy to give way to the hon. Lady, but I do not want to have an endless ping-pong session with the hon. Gentleman at this point.

[Jo Stevens]

I refer the Minister to the letter of 14 October from the Welsh NHS Confederation to his colleague, the Minister for the Cabinet Office, which states:

“We feel that some of the proposals outlined in the Trade Union Bill could have a detrimental effect on this relationship”—

with trade unions—

“and potentially lead to unnecessarily challenging industrial relations in future…strike action in the NHS in Wales over the last decade has been minimal, despite significant organisational change and the introduction of significant changes to terms and conditions, so we do not believe that any additional measures to protect the public from strikes are necessarily required.”

Will the Minister comment on that?

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[Nick Boles]

Sir Alan, you know as well as I do that if I were even to dare tiptoe on to the question of the financial settlement with devolved Administrations, there is literally a device implanted in my brain that would explode and decapitate me. I am not going to go there, however much pleasure it might give Opposition Members. [Interruption.] However, if the hon. Gentleman wants to write to the Chancellor—or to me and I can pass on the request—I will, of course, reply to his question.

If there are no further requests for interventions, I will conclude. The amendments in this group seek to use the Bill as a mechanism to carve out different arrangements in employment law and industrial relations for Scotland, Wales, London and English local authorities. Parliament has already determined that these matters are reserved. The amendments are an attempt to extend devolution by the back door and that is why we cannot accept them. I ask hon. Members not to press the amendments.

[Jo Stevens]

In opposing clause 3 and speaking in support of our amendments, I wish I had the faith in the legal advice that the Minister seems to have in his lawyers. I remind the Government of the evidence that we heard last week from Professor Keith Ewing, professor of public law at King’s College, London, about the Bill being incompatible with settlements in Wales and Scotland, which is entirely contrary to the position that the Minister has just asserted. The Committee will recall that Professor Ewing said:

“The Government are walking, almost blindfolded, into a major constitutional crisis around the Bill. That constitutional crisis could be as explosive for this Government as the poll tax was for the Thatcher Government in the late 1980s and early 1990s. This is a big, big problem, and I am not sure that people have really thought through the consequences.”––[Official Report, Trade Union Public Bill Committee, 15 October 2015; c. 129, Q346.]

Not having thought through the consequences is a recurrent theme in the Bill. I appreciate that the Government seem to have struggled to give examples of good industrial relations in England. Almost every example of industrial action and dispute that they have referred to has involved employees in London, which I would suggest is a reflection on the Mayor of London rather than on current industrial law.

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[Jo Stevens]

Can the Minister tell us when those regulations will be published?

[Nick Boles]

I have consistently made it clear that it will be before the Bill receives Royal Assent. I cannot give the hon. Lady the precise timing. We do not know the precise timing of the Bill’s further parliamentary stages, because that is not entirely within our gift, but the regulations will come forward before the Bill receives Royal Assent.

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[Jo Stevens]

I rise to speak in opposition to clause 4 and in support of amendments 14 to 19. From reading the clause, the Government appear to think that trade union members are not capable of understanding what they are voting on in a ballot on industrial action. That is a patronising attitude to working people, who do not lightly take industrial action; they consider carefully what they are voting for. They understand the issues. There is not one single shred of evidence of union members saying that they did not understand what they were voting on or why.

The Government propose changes to the law that will turn an industrial ballot paper from a succinct statement with a yes or no question to something resembling a legal disclaimer. The Chartered Institute of Personnel and Development has said that the proposals are “counterproductive”. Employers’ lawyers have said that the proposals are vague and unworkable and that they will lead to legal challenges and expensive litigation. No one wants that—apart from the Government, it would appear.

As my hon. Friend the Member for Cardiff South and Penarth said, the purpose of the proposals appears to be to encourage court cases by employers. Witnesses to the Committee have said that they are not about information for union members, but ammunition for employers. Looking at the detail, the ballot paper must include

“a reasonably detailed indication of the matter or matters in issue in the trade dispute”.

What does that mean? It has been criticised by lawyers across the spectrum for being so uncertain as to be meaningless. What is “reasonably detailed”? It is an oxymoron and it is contradictory. How will both sides of industry know whether something is detailed enough to be “reasonably” detailed or regarded as too detailed? Unions and employers will be in court every single time. What is “an indication”—a nod or a wink? This is not the language of statute, and I wonder whether it might come from the Prime Minister’s nudge unit. Anyone with any experience of industrial relations will know that the question of what is in issue in a dispute is often a matter of disagreement. This wording will further add to legal challenges.

The next requirement imposed by the Bill is to state

“the type or types of industrial action”.

What does that mean? We heard in evidence to the Committee that even Government lawyers themselves cannot explain it. The current definitions of “strike” and “action short of a strike” have been clarified by case law and amendments to statute over the years. They are now clear and well understood, so what are the “types” of action the Bill refers to? We are told that they include an overtime ban, for example, and work to rule, but those are not legal terms of art. Again, this will lead to expensive litigation and legal wrangling in the courts.

Finally, the union must state on the ballot paper

“the period or periods within which the industrial action or…each type of industrial action is expected to take place.”

Why should a union be required to state that information at the stage of the ballot, weeks before any action could lawfully take place, when they must in any event give notice of dates of action after the ballot is completed and before action takes place? The intention behind every single one of these provisions is to set legal traps for unions so that employers can run off to court and get injunctions to stop legitimate action.

Employers, however, do not want the provisions either. They fear the consequences. Employers’ lawyers have said they are concerned that unions will have to draw the descriptions on the ballot paper as widely as possible to give themselves legal protection. Unions will have to include every possible type of action they might take and set out every day on which they might take each type of action.

What is more, employers’ lawyers fear that to avoid legal challenges, unions will have to stick to every single detail spelled out in the ballot paper. They will not be able to resolve any issues in the dispute unless all issues are resolved, otherwise they will face legal challenge. They will have to take every type of action specified and on every single day specified, otherwise they will face legal challenge. How on earth is that supposed to reduce the number of disputes that take place? It will simply increase them.

Disputes will escalate. They will become more entrenched and more difficult to resolve, all because of these changes. That is why the CIPD says that the proposals are a “significant step back” that will “harden attitudes”. I invite the Minister to withdraw them, but if the Government persist with these counterproductive proposals that no one wants, they should be amended as we propose.

[Nick Boles]

I am pleased that the hon. Lady gives me the opportunity to set out in more detail what sort of information we expect unions to include on the voting paper. I fear this may take a little time, but I want to address all the amendments tabled and why we will resist them.

I will start with first principles. We want unions to be absolutely clear with their members about what they are being asked to vote for, in order to ensure full transparency in any industrial action ballot. It is clearly in the interests of union members, as well as employers and the wider public who are affected by strike action, that those being asked to vote for such action can make a fully informed decision about whether to back it.

I remain concerned that merely requiring a trade union to state the trade dispute without requiring any further detail, as suggested in amendment 14, would not meet the objective of enabling members to make a fully informed decision. It would only require a very broad statement. In reality, it will in most cases mean that members have no more information about the dispute than they have from wider communications. It does not provide enough clarity for union members to determine whether they choose to support industrial action. That cannot be right or democratic.

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[Nick Boles]

There the hon. Gentleman goes again with his blood-curdling language. I have been described as introducing “an executioner” of trade unions. The simple truth, as ever, is a lot duller: we are just trying to beef up the certification officer’s role so that it can be a modern regulator of trade unions.

The certification officer will have no greater and no more expansive powers than other regulators—indeed, rather less in some examples. We also want more transparency for everyone about industrial action undertaken by unions. Effective regulation and transparency help to improve confidence in how institutions are run, which can only be a good thing. It is slightly surprising to hear the hon. Gentleman and his colleagues argue against transparency, as if somehow the public interest is better protected by keeping things secret. That is a surprising position for the Opposition to take.

We will discuss the detail of the certification officer’s role later, and I do not want to anticipate that. This debate is about the information that trade unions are required to provide to the certification officer about industrial action. That is an important requirement, because the timely provision of good quality information is a key component of ensuring effective regulation. It gives more confidence to those affected by industrial disputes, which is of course why trade unions are already required to provide certain information every year to the certification officer. That is set out in section 32 of the Trade Union and Labour Relations (Consolidation) Act 1992 and annual returns submitted to the certification officer are already available for public inspection. I do not remember any proposal coming forward from the previous Labour Government to alter the fact of those annual returns or of that availability. If industrial action is taken during the period of the return as a result of a successful ballot called by a union, the clause requires that union to include certain information about the action in its annual return to the certification officer.

[Jo Stevens]

Can the Minister tell the Committee who exactly has asked for the provision? We are not aware of anyone, neither employer nor union, who has asked for it.

[Nick Boles]

I have news for the hon. Lady: the Government sometimes act because they have received a mandate—and a majority—at a general election on a clear proposal in their manifesto. That clear proposal was to reform the role of the certification officer. The Government have also, during the term of the coalition Government, had a longstanding commitment to transparency in the public interest and we are not ashamed to continue that in the clause.

The union will need to provide details about the nature of the dispute, the nature of the industrial action and when the action was taken, as specified by clause 4. One of the ways in which we seek to achieve a more effective role for the certification officer is by ensuring that he has full information about any industrial action proposed and taken by a union. We want to achieve that through increased transparency in the annual return to the officer. The clause also requires a union to provide the certification officer with details of the outcome of any ballot for industrial action, if the union has called a ballot during the period of the annual return. That requirement applies whether the ballot was successful or not.

Accurate information presented in a transparent manner about industrial action proposed and taken by a union helps to demonstrate to union members, and to the wider public, that unions are properly regulated and fully accountable for their actions. I commend the clause to the Committee.

Question put, That the clause stand part of the Bill.