Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Bill

Julie Elliott Excerpts

Wednesday 11th September 2013 Commons Chamber

[Mr McKenzie]

My hon. Friend is absolutely right. This Bill and clause 36 have come under sustained criticism from just about everyone except those on the Government Benches. This part of the Bill has led to my inbox being filled—and, I am sure, other Members’ inboxes, too. The messages I have received have come not only from trade union activists, but from people throughout my constituency who are concerned about what this Bill, and this part of it in particular, will mean for them.

This part of the Bill seeks to change the legal requirements in relation to trade unions’ obligations to keep their lists of members up to date, as if it would somehow be of benefit to unions not to keep their membership records up to date. Trade unions continually communicate with their members, as I know as a trade unionist myself; I continually receive mailings from my trade union. They clearly know who their members are and how to contact them, therefore, so the claims made by Government Members that their records might be incorrect or they might have phantom members are beyond belief.

There are concerns about membership data and security and the possibility of the blacklisting of trade union members. There are data protection issues, therefore, and what about people’s right to privacy? In the 1980s I was employed in the private sector and my employer at that time would have been delighted to get its hands on a list of the trade union members among its employees. Instead, it had to put feelers out and, believe it or not, engage people to take photographs.

[Julie Elliott (Sunderland Central) (Lab)]

In some cases where employers are not the best employers, these provisions will leave trade union members very vulnerable, and certainly more vulnerable than they are now.

[Mr McKenzie]

My hon. Friend is right; that would be a consequence of this Bill. In the past, unscrupulous employers would go to any lengths to find out which of their employees were trade union members. I recall being photographed entering trade union meetings by my employer. It would have saved a great deal of money if it had been able to get its hands on these lists.

“Reveal your membership,” the unions are told, on the basis of demanding accuracy.

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[John McDonnell (Hayes and Harlington) (Lab)]

I think we misinterpreted the hon. Member for Huntingdon (Mr Djanogly), because what he said was extremely supportive. He went to what my hon. Friend the Member for Edinburgh South (Ian Murray) described as the crux of the Bill, asking why it is here. The hon. Gentleman was asking his own Front Benchers, “What the hell are we doing?” As my hon. Friend the Member for Inverclyde (Mr McKenzie) and others have asked, what mischief does this part of the Bill seek to address? I really tried to find out what the Government’s thinking is, so I looked at what they said in the consultation paper, which was published in July. The first reason they put forward for this move was as follows:

“As membership organisations, it is important that trade union decisions reflect the will of all their members.”

If that is the case, does it mean that we are now going to legislate in respect of all membership organisations? Sir Edward, you are a member of the Roman Catholic Church and if we are going to do that, we might well introduce legislation to see whether the Catholic Church is following the laity’s views.

Why does this provision apply to trade unions alone? Next, the Government identify trade unions for this special legislation because:

“Trade union activity has the potential to affect the daily lives of members”.

With the greatest respect, so too does the activity of the Roman Catholic Church, the CBI and the Institute of Directors. So why are we focusing on this particular membership organisation? As has been said, the reason is that this legislation is really about trying to impede the operations of the trade unions in this country. Government Members might argue that this measure has minimum cost and minimum imposition of roles and responsibilities on trade unions. The impact study makes an assessment that there will be only 6p of additional cost, although that is still 6p. However, it also says, straightforwardly, that the risks are that this will displace core trade union work. It will do that; trade unions will have to devote their time and energies to this and it will therefore displace their core trade union work of representing their members. So it is about impeding the real role of trade unions.

[Julie Elliott]

Does my hon. Friend agree that this part of the Bill is unnecessary legislation and that it is just an attack on trade union members going about their daily business and being active trade unionists? It is an attack on ordinary working people standing up for their rights in the workplace.

[John McDonnell]

That is exactly what it is. I am speaking on the clause standing part, as well as to the amendment, Sir Edward, because we have to understand what this clause means. I cannot, for the life of me, interpret it other than in the way my hon. Friend has just done. It is an attack specifically on the role of trade unionists and their rights to fulfil their responsibilities.

We have seen the operation of challenges to membership lists in respect of industrial relations and, in particular, of industrial action being taken and determined by members. The history is that the employers have used the existing legislation and interpreted it so that any minor discrepancy about a membership list is used in a rush to court to seek an injunction to prevent industrial action from taking place. Some examples have been given, but I have been involved in a number of activities associated with trade unions where even though there has been a 99% overwhelming decision in favour of industrial action, one or two members out of thousands have been missed off the ballot and so an injunction has been awarded. Therefore, the industrial action, along with the will of the members, has been prevented from being implemented. We tried to overcome that through legislation in this House—I tried to put such legislation through on three occasions, but it got talked out every time—but we have just overcome it in the courts. We have received a decision in the courts that enables minor infringements not to be taken into account and the decision of the overall will of the members to be acceded to.

However, the Bill opens up a whole new vista of potential legal challenges. As colleagues have said, it relates not only to industrial action, industrial activity, ballots and so on; it could relate to the whole operation of the union. Employers could trawl over membership lists, go off to the certification officer and then we could get to court, where the challenge will be about how the union operates overall. So lawyers will be able to tie up trade unions in legal actions for years to come, preventing them from undertaking what the impact study calls their “core” trade union work of representing members.

I ask Government Members: what is the motivation for this measure? Some of that has leaked out. They have listened to what has happened in recent months—the anger there is among working people about the cuts to their wages, the zero-hour contracts and the undermining of employment rights. People are beginning to react. They do not usually react at the depths of a recession, doing so when they are coming out of one and when the living standards of some are rising. So we are talking about a recovery for the rich but a recession for the rest. That is when people get angry and when industrial action takes place—that is when strikes happen. It is also when trade unions need to be representing their members. So I think this measure is part and parcel of the Government preparing for the potential for industrial activity over this coming period. It is another mechanism by which they will do everything they possibly can to undermine the rights of trade unions and their ability to operate effectively in representing their members. It is so short term, because all it will do is anger people even more and as these impediments build up, although they are relatively minor at first, people will become more angry. Then, we will have wildcat action—action that is uncontrolled—because people are so furious at how they are being treated by their employers in collusion with the Government.

Let me make one final point, because I want to understand. If the argument is that the clause is about ensuring that membership organisations are open, transparent and accurately reflect their members’ views, and if it is about organisations that have an impact on the general life of our society, why does it not refer to the CBI, the Institute of Directors and all the other trade associations? They are membership organisations and they have as much of an effect on the daily lives of our population as trade unions, yet they remain completely unregulated. That portrays to me the in-built bias of this Government against trade unionism and working people. That is why we must vote against clause stand part.

The amendment is moderate, and simply says that if the certification officer identifies a problem we should implement the provision—I have similar amendments on the implementation of the Bill, which we probably will not reach. That is all my hon. Friend the Member for Edinburgh South is saying: if there is a grievance or a problem let us by all means have some action, but not unless a problem is identified. That is a relatively moderate, pragmatic way forward. If the Government do not accept the amendment, that will completely endorse the view that this is bias motivated by prejudice against trade unions and trade unionism.

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[John Cryer]

My hon. Friend makes a good point. Perhaps the Minister will tell us whether any other section of civil society is as heavily regulated as trade unions. Unions will be subject to even more regulation because every piece of communication with members will be covered by statute, which represents an extraordinary intervention into people’s lives.

Will the Minister tell us how the 1992 Act relates to the Bill, and especially to clause 36, because that Act makes provision for keeping accurate and up-to-date records? Will she tell us what has specifically changed since the implementation of that consolidation Act that has brought about an enormous problem that now must be dealt with?

[Julie Elliott]

Given the regulation on trade unions’ membership records that already exists, does my hon. Friend agree that unions probably are the most regulated membership organisations in the country and have the most accurate records? What is the need for extra regulation, other than to constrain the legitimate actions of trade unions?

[John Cryer]

I could not agree more—my hon. Friend puts it far better than I could.

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[Ian Lavery]

It is amazing. The Government are looking to cut red tape on industrial relations, health and safety and trade union law, but at the same time the only organisation for which they are looking to increase bureaucracy is the trade union movement. That is a fair point, which highlights what is really behind the Bill: another vicious attack on the trade union movement. In the main, it will be the ordinary person at grass-roots level who will have to make sure that the proposed legislation is applied.

Anyone wishing to take part in the debate should at least have read section 24 of the 1992 Act, as that is what the Bill is about. What on earth are we after? Section 24 states:

“Duty to maintain register of members’ names and addresses

(1) A trade union shall compile and maintain a register of the names and addresses of its members, and shall secure, so far as is reasonably practicable, that the entries in the register are accurate and are kept up-to-date.

(2) The register may be kept by means of a computer.”

[Julie Elliott]

Is it not true that the certification officer oversees compliance with the 1992 Act to ensure that membership records are kept correctly? Does my hon. Friend therefore agree that there is no need for further regulation or changes to the law to add to this bureaucratic burden?

[Ian Lavery]

I totally agree with my hon. Friend. That is the point I hope I have established and I will continue to make it.

Section 24(3) states:

“A trade union shall—

“(a) allow any member, upon reasonable notice, to ascertain from the register, free of charge and at any reasonable time, whether there is an entry on it relating to him; and .

(b) if requested to do so by any member, supply him as soon as reasonably practicable, either free of charge or on payment of a reasonable fee, with a copy of any entry on the register relating to him.”

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I do not think they have, which is the reason for some of our amendments in this grouping. As we have said, trade union membership falls under “sensitive personal data”, which means personal data consisting of information about many aspects of a person, including—these are the important aspects for this Bill—their political opinions and whether they are a member of a trade union, within the meaning of the Trade Union and Labour Relations (Consolidation) Act. The presumption is that because information about such matters could be used in a discriminatory fashion and is likely to be of a private nature, it needs to be treated with greater care than other personal data. The nature of those data is also a factor in deciding what security is appropriate in securing them. That is the purpose of amendments 116 and 117.

[Julie Elliott]

Does my hon. Friend agree that if our amendments dealing with this issue are not accepted, there is a danger that such sensitive information, as classified by the Data Protection Act, will become much more vulnerable?

[Ian Murray]

My hon. Friend makes an incredibly good point. One of the key aspects of the Trade Union and Labour Relations (Consolidation) Act is to ensure that trade unions’ membership lists are up to date. The current categories are set out in sections 24(1) and (2) of the 1992 Act—my hon. Friend the Member for Wansbeck (Ian Lavery) spoke about them a few hours ago—which contain provisions to ensure that anyone unhappy with their personal data being held by the trade union can apply to the certification officer for a ruling on whether those data should be held. There are therefore already strict rules about the data, which is right, given, say, blacklisting and whether data on trade union membership become an issue.

The purpose of amendments 116 and 117 is to restrict data collection in a trade union to collection from the data controller only. The data controller can subsequently obtain the required information from individual branches or sections, as mentioned in the Bill, but the responsibility for that must come from the data controller of the union, who has the legal obligations both under the Data Protection Act and their responsibilities to the Information Commissioner. Inquiries to other centres makes the job of the data controller near impossible. Trade unions manage their membership data carefully; that should be explicitly maintained in the Bill.

Such considerations have given rise to a fear that part 3, and clause 37 in particular, could result in a new scandal of people being blacklisted for being members of a trade union. That is the reasoning behind amendment 120, which would restrict disclosure of a member’s data to where the member had consented—that is, given explicit consent under the Data Protection Act—and the investigation of criminal proceedings. The list of other such circumstances set out in clause 37 is unhelpful in dealing with people’s data protection concerns and the blacklisting issues that might arise. Proposed new section 24ZG(3) of the 1992 Act, as set out in clause 37, is too widely drafted and creates other legal responsibilities that the data controller might not be able to meet.

In the last couple of years we have seen the increasing exposure of blacklisting activities in some sectors, in which individuals have concerns about joining a trade union for fear of victimisation at work and loss of employment. Increasing powers for state officials to access union membership records and addresses can only increase the deterrent against such activities. May I respectfully suggest to the Minister that, rather than increasing the regulation of trade unions through this Bill—which might increase the risk of blacklisting—the Government should take active steps to abide by the decision taken by this House back in February, after the Opposition day debate on blacklisting, to instigate an inquiry, release the information held by the Information Commissioner’s Office about the victims of blacklisting and look at a compensation package for those on the blacklists?

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[Ian Lavery]

Although I fully agree with my hon. Friend, there are probably better ways of doing it. I fear that again I am repeating myself, but everything the assurer is supposed to do is carried out under the TULR regulations.

[Julie Elliott]

In my trade union, the rulebook can be changed only by a change of rule motion to congress, and a rule change congress is held every two years. Has my hon. Friend any idea how my trade union—the GMB, one of the biggest trade unions—could comply by making the change to the rulebook under the restrictions the Bill will place on it for the 12 months prior to a general election?

[Ian Lavery]

It is up to a trade union and its membership to decide what they want in that union’s rules. It should not be for Government diktat to insist what an independent trade union should and should not have in its rulebook—surely that is undemocratic. Under the democratic process, what should and should not be in a union’s rulebook is decided at conferences following discussions among delegates from the regions, not by the coalition Government. My hon. Friend raises an interesting point because if the Bill is passed, must the 166 trade unions on the certification officer’s website immediately call conferences so that they can adhere to the new legislation? What will happen if they do not?

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[Ian Lavery]

That is a very important point, and it was discussed earlier. There is a legal contradiction in relation to a trade union’s obligations under the TULR regulations to adhere to the Data Protection Act, which protects members’ private and personal details from being released. The new legislation gives powers to the likes of the assurer. Who knows who these assurers will be and what they could do with that information? It is therefore very important that we look at this. These assurers could be anybody. It would be very difficult to know whether they are part of an organisation that assists in blacklisting. The confidentiality of people in the workplace is a live issue. Why add another layer of bureaucracy by having these assurers? It is absolute poppycock. It is nonsense. Whoever dreamt it up should be fired. Hundreds, if not thousands, of people are affected by blacklisting and the situation could get an awful lot worse if the Opposition amendments are not accepted. Like many others here, I am sure, I have spoken to people who were not even aware that they were on a blacklist but subsequently found out that, for years, the reason they had been unemployed, their kids had not had the best uniforms at school and they had been on benefits was that they had been on a blacklist. That seriously concerns me.

There is a huge problem with confidentiality and with conflict resulting from the legal interpretation of the Data Protection Act and the 1992 Act. We have to support the amendments and try to kick out this absolutely hopeless Bill.

[Julie Elliott]

It is a pleasure to follow my hon. Friend the Member for Wansbeck (Ian Lavery), with whom I have worked in the trade union movement in my region for far too many years.

Clause 37 is all about the implications of appointing an assurer. As other Members have said, we have to draw to the Government’s attention the irony of the enormous added burden that the clause will impose on trade unions, given that we work in the most regulated part of the voluntary sector. The provision is absolutely unnecessary and is politically motivated. I had to say that before I turn to the two amendments I am most concerned about.

Why do people join trade unions? Sometimes it is because their friends join, and sometimes in their workplace it is just the done thing to join. Some people join to have an insurance policy in case they get into trouble or are picked on. Many join when they are first employed and want to maintain their membership as they get promoted up the ladder.

In workplaces where the majority are in a trade union, there are no secrets. Everybody knows who is in the union and it is common for both the lowest paid and most senior members of staff to be in the trade union. When I was a lay rep, I negotiated on behalf of my members and the senior manager I was negotiating with was a member of my branch of my trade union. That is common when a workplace has a high density of union membership.

However, in other workplaces, people who rise up the ladder and become senior managers may not want their managerial colleagues or the work force to know that they are in a trade union. Do not think that it is just those at the bottom end who do not want people to know that they are in a trade union.

People are also at their most vulnerable when there is no recognition in a workplace. Sometimes their jobs are under threat. People get victimised out of the door because the management have found out that they are union members; I have seen that on numerous occasions as a union official. As we discuss the clause, we have to look at the real world and how things work in practice, rather than at what is, frankly, an academic diatribe.

[Andrew Gwynne]

In the real world, my hon. Friend, like me, will have received hundreds of e-mails and letters about part 2 of the Bill. At her recent advice surgeries, how many people have been saying, “Do you know what, Julie, we need to appoint an assurer to ensure openness and transparency in the trade unions”?

[Julie Elliott]

My hon. Friend will not be surprised to hear that not a single person has said that. As my hon. Friend the Member for Wansbeck said, what does “assurer” even mean? It is such a nonsense of a description. As I said, we have to work in the real world. Good legislation needs to understand and relate to the real world, but nothing in clause 37 does, according to my knowledge and experience.

On amendment 112, let us look at the real world—the practicalities. This is about employers sharing information and accurate details with trade unions. Where there is a good relationship and a good recognition agreement, the unions work hand in hand with employers because if businesses do well, union members do well, and there is therefore complete transparency, openness and sharing of information. However, if that situation does not exist, that is not the case. The TULR regulations already set the requirements on the maintenance of the membership system. Various rulings have said that reasonable steps have to be taken to make sure that the membership records are accurate.

In my personal experience—that is where we can all draw our information from—bad employers will do anything to make trade union records wrong. That does not happen only in relation to membership checks for industrial action ballots, which are the most onerous and time-consuming things a trade union official will ever do. In can be a case of trying to get recognition in a company where members have been recruited. Usually it is when members in an unrecognised work force have problems that they go to a trade union. Time, energy and effort will have been spent recruiting the number of members to hit the threshold required to be able to apply for recognition. It is unbelievable the steps that employers will take to try to scupper those numbers. They will suddenly take on temporary workers. If the union is applying for recognition for a particular part of the work force, they will move people from one part of the company to another suddenly to boost the numbers so that the required percentage is not reached. The idea that employers of that mindset will share information about our members is ridiculous.

I would like to run through some of the things that we did when I was a trade union official to try to ensure that our membership records were as up to date as possible. A couple of times a year we sent out magazines to every single member of the trade union, and there was always a big advert saying, “If you move house, change jobs or change your telephone number, let us know.” It has become increasingly hard to keep membership records accurate. Historically people had land lines and did not change their telephone number; nowadays, a lot of people do not have land lines and mobile phone numbers can change quite frequently. There are an enormous number of inaccurate phone numbers in the records of trade unions, as there will be, I suggest, in any organisation. The situation is incredibly difficult. Any other mailing to members would have another advert or a paragraph saying, “If any of your details have changed please let us know.” We had branch audits where it would be a specific task in a certain branch to go through the membership records and physically talk to people about them. I do not think that trade unions could do any more to keep track of their members.

Another issue is that the world has changed. This goes back to my point about having to be practical; in my view, nothing in this clause is practical. Trade union workplace branches, which historically the unions were built on, virtually do not exist any more because the world of work has changed. People do not start work when they leave school and stay there until they retire. We do not have mass employers of thousands of people where people remain in their jobs and can gain promotion and go through the ranks in one company. That is not today’s world of work. In those days, it was quite straightforward to keep track of the membership.

All those things have made the situation more difficult. I hate the idea of what the clause proposes. It is saying that some random person on the street—the assurer, whoever this person is and from whatever background—could challenge what is happening and say, “You haven’t kept your membership records correct.” What is the level of leeway going to be? Where will reasonableness come into this?

[Ian Murray]

My hon. Friend is making a compelling case against the Bill. Given her vast experience of involvement in the trade union movement, is she able to think of any circumstances in which a trade union would think it was in its own interests not to keep accurate membership records?

[Julie Elliott]

No, absolutely not. Trade unions would welcome anything to help them keep more accurate records, because of the amount of time they spend trying to communicate with their members. That argument is a misnomer—it is ridiculous.