Lord Balfe
Main Page: Lord Balfe (Conservative - Life peer)
Lord Pannick (CB)
My Lords, your Lordships will have seen the report published last Friday by the Joint Committee on Human Rights on the application of Article 11 of the European Convention on Human Rights, which guarantees freedom of association, including the right to form and join a trade union. This is of particular relevance to the issue we are debating—electronic balloting.
The Joint Committee’s report mentions that in 2014 the European Court of Human Rights dismissed a complaint brought by the National Union of Rail, Maritime and Transport Workers about the ban on secondary action. I declare an interest: I was counsel for the United Kingdom Government in that case. The European court said that it will generally respect a legislature’s policy choices in relation to social and economic issues, including its laws on industrial relations, which it accurately describes as a,
“legislative policy area of recognised sensitivity”,
unless the choices the legislature makes are “manifestly without reasonable foundation”.
The European court said that a democratically elected Parliament is “better placed” to identify,
“what is in the public interest on social and economic grounds”.
The Joint Committee points out that the European court added that, the more far-reaching the interference with a core trade union activity—for example, requiring the dissolution of a trade union—the greater the justification required. I think, however, that the European court and courts in this country would almost certainly regard the basic provisions in Clauses 2 and 3 as not going to the core of trade union activity because the existence of trade unions and the rights to call a strike are unaffected, albeit that important limits and conditions are imposed. Parliament would, I think, be acting well within its broad scope of discretion if we decided that the disruption to the lives of others caused by strikes, particularly in the public sector, justified the general measures in Clauses 2 and 3.
I would be very surprised if the European court were to agree with the noble Lord, Lord Monks, that the threshold provisions are arbitrary. However, I agree with the Joint Committee that the Government may be vulnerable to a legal challenge under Article 11 because a court will consider the package of statutory provisions as a whole when it assesses whether those provisions are proportionate and whether they have an objective justification. If the Government do not compromise on some of the less attractive provisions of the Bill, to which we will come, such as check-off, they will be at much greater risk of a human rights complaint being taken seriously by the court.
Clauses 2 and 3 would be particularly vulnerable to legal challenge if the Government refuse to allow for electronic balloting. Allowing online balloting would manifestly promote the professed objective of the Bill to enhance democratic decision-making on strikes. My advice to the Government is to consider carefully the amendments in this group and to seek an accommodation to allow electronic balloting to reduce what will otherwise be the legal vulnerability of Clauses 2 and 3, which could damage an important objective of the Bill.
Lord Balfe (Con)
My Lords, I declare my interests as president of the British Dietetic Association, a TUC-affiliated union, and an unpaid adviser to BALPA, the pilots’ union. I also remind the Committee, as I do virtually every time I speak on the trade unions, that 30% of trade unionists—in fact, slightly more, we estimate—vote for the Conservative Party in general elections. Sometimes we tend to forget that and to think that the trade union movement is a sort of Labour Party at play. It is not. It is as diverse, almost, as the rest of the country.
In speaking about electronic balloting, I point out that I am always pleased when Governments carry out what is in their manifestos. It is not something that I have been used to for the whole of my political life. However, I must say to the Minister that at no point in the Conservative Party manifesto is anything mentioned about electronic balloting not being allowed. Therefore, this clause in the Bill is in no way connected with the election manifesto, although quite a few other clauses are and I will not be opposing them.
Lord Kerslake
The noble Lord is absolutely right that cybersecurity is critical. Indeed, I was going to come on to that. It is critical across every aspect of digital technology and use of digital systems. In fact, many security systems in this country are highly dependent on tackling cybersecurity issues. There is no doubt that we need to deal with it. I venture to suggest that, in comparison with those risks and issues, the risks associated with electronic balloting for potential strike action may not be quite as big.
The noble Lord, Lord Pannick, made a powerful argument about how this issue sits in the wider context of balance and proportionality as the Bill is taken forward. We are applying quite significant thresholds. Have we done everything possible to enable unions to achieve that turnout? Are we acting in a proportionate and balanced way? That is critical. In many ways, the amendment may well save the Government from themselves and a potential successful legal challenge in the future.
I will finish with two points. First, the whole purpose of my amendment is to actively and independently look at issues of security. I am 100% persuaded that we can have sufficiently secure electronic balloting, and, indeed, workplace balloting, which, as has been said, happens now through the CAC. Secondly, the purpose of my amendment is to look at this issue through an independent process. Let us not put it above the principle of thresholds, as the noble Lord, Lord Dobbs, said, but if we put these thresholds in place, we should reasonably and independently explore the question and report back to the House.
This is most definitely not a manoeuvre to delay the Bill. In fact, I have put a time limit of two months in which to carry out the work, which should be more than ample to do work of this nature. Therefore, this is not about saying that we have definitive answers—although I personally think we do—but that we should properly and independently test this issue.
My last point goes to the argument made by the right reverend Prelate the Bishop of Chester. Ultimately, this is about fairness. Are we acting in a fair way in the changes we are making, which affect a very important issue in this country: the right to strike? That should be our determination and, if we believe that that is the core of this issue, the amendment is entirely reasonable. I really hope the Minister will think about how we might do this. Given her very constructive commitment to think seriously about this issue, I will of course withdraw the amendment and hope to have further conversations on this issue.
Lord Balfe
Before the noble Lord sits down, we have of course discussed five different amendments. My amendment says that a trade union may only use electronic voting,
“subject to the agreement of the Certification Officer”,
which would obviously be if the system was secure. So I draw the noble Lord’s attention to the fact that the Minister has many different options to choose from, as well as his own very well-drafted, crafted and spoken to amendment. The principle of electronic balloting is at the heart of this debate.
Lord Kerslake
The noble Lord, Lord Balfe, makes a very powerful point. I entirely agree that the aim here is to be able to say, by the point at which we introduce these thresholds, that we have given the widest range of choices. That is where we are trying to get to. If there are alternative ways of doing it, I am very open to that conversation. That is why I am willing to withdraw the amendment at this point, and to continue that conversation. It will not be good enough simply to let the issue drift and return to it as and when appropriate. We need to sort it out now, as part of the Bill.