Trade Union (Levy Payable to the Certification Officer) Regulations 2022

Lord Callanan Excerpts

Monday 7th March 2022 Lords Chamber

Moved by

[Lord Callanan]

That the draft Regulations laid before the House on 14 December 2021 be approved.

Relevant document: 25th Report from the Secondary Legislation Scrutiny Committee

[The Parliamentary Under-Secretary of State, Department for Business, Energy and Industrial Strategy (Lord Callanan) (Con)]

My Lords, these regulations enact the reforms made by the Trade Union Act 2016 to the powers of the Certification Officer, the regulator of trade unions and employers’ associations. These regulations have been commented on by the Secondary Legislation Scrutiny Committee in its 25th report on grounds of policy interest.

Before I explain the contents of the regulations, it is important to provide the context to these reforms. Trade unions have an important role in effective industrial relations and in wider society. There is a legitimate public interest that trade unions run their affairs according to what is required of them, so it is necessary that they have a responsible and diligent regulator. The reforms in the Trade Union Act are about proportionate and effective regulation. We are bringing the powers of the Certification Officer up to date with those of comparable regulators in other sectors.

The Trade Union Act brings three reforms to the role. The first enhances the Certification Officer’s investigatory powers. These reforms were implemented in commencement regulations made in December 2021 and will commence in April. They are not the subject of these regulations, so I will give only a brief overview. Currently, union members may bring complaints to the Certification Officer—for example, on the conduct of elections. The Trade Union Act gives the Certification Officer the same powers to investigate all breaches that she currently has for financial matters and the register of members. This will enable her to act without having to rely on a complaint from a member. This is a wholly reasonable power for a regulator.

These regulations bring into effect the second and third reforms introduced under the Trade Union Act: financial penalties and a levy. We consulted separately on these reforms in 2017 and conducted a further engagement exercise on the levy last year. Unsurprisingly, trade unions made up the majority of the responses to these consultations and the further engagement exercise. I will go on to explain the measures that we have put in place to address the concerns raised.

The Trade Union (Power of the Certification Officer to Impose Financial Penalties) Regulations 2022 strengthen the Certification Officer’s enforcement powers by allowing her to impose financial penalties against organisations that breach their statutory obligations. Penalties will be banded into three groups, according to the severity of the obligation breached. This approach was supported during consultation. For breaches of the most important statutory obligations, including the proper conduct of union elections and political funding, the Certification Officer will be able to impose a maximum penalty of £20,000. This is in line with penalties imposed by other bodies, such as the Electoral Commission.

For other breaches of statutory governance requirements, including keeping the membership register up to date, the Certification Officer will be able to impose a maximum penalty of £10,000. For breaches relating to requirements to provide information or comply with investigatory requirements, or breaches of internal union rules, the maximum penalty will be £5,000. The regulations provide for a 50% reduction in the maxima for unions whose membership is under 100,000 people. In response to concerns raised in the consultation regarding the impact on small unions, we will not be charging interest for late payment of penalties. The Trade Union (Levy Payable to the Certification Officer) Regulations provide for a levy on unions and employers’ associations to fund the Certification Officer’s work. In this time of financial constraint, it is right that organisations should contribute towards a levy. This is a widely used way to fund such regulators.

The regulations establish a levy framework that is equitable, affordable, predictable and simple. To ensure that the levy is equitable, the Certification Officer will be able to broadly apportion the levy between the different categories of regulated organisations—that is, non-federated trade unions, federated trade unions, non-federated employers’ associations and federated employers’ associations—based on how much time she spends on each of them. To ensure the levy is affordable for all, lower-income organisations will be exempt from the levy entirely. No organisation will pay more than 2.5% of their annual income, as set out in their annual return to the Certification Officer.

To ensure that the levy is predictable each year, the Government will continue to fund the cost of any external inspectors, as the use and cost of these is variable. This was discussed at the time that we debated the Trade Union Bill. For the same reason, the Government will also fund the cost of any external legal advice that the Certification Officer may seek. This was not identified during the passage of the Act, but we believe it will allow for a fairer levy. Finally, to ensure the levy is simple and transparent, the Certification Officer will need to aim to ensure that income from the levy matches her expenditure over a three-year period. She will also need to explain how she calculates the amount of levy that each organisation is charged.

Separate regulations will abolish the majority of the Certification Officer’s existing fees, which will be subsumed into the levy. These will be made under the negative procedure, and we intend that they come into force at the same time as the levy. In response to requests by trade unions during consultation, two fees will be preserved: the fee for listing as an organisation, and the fee for a union to be granted a certificate of independence.

We recognise that these are significant changes for the organisations involved, albeit that they are a clear and required implementation of the Trade Union Act 2016. That is why we announced these reforms in June last year, to allow trade unions and employers’ associations time to prepare before they are implemented in April 2022. This also allowed the Certification Officer time to put the systems in place to determine and charge the levy.

In conclusion, these reforms are not about constraining the ability of unions and employers’ associations to do their valuable work. These regulations will give the Certification Officer the tools that she needs to do her job as effectively as possible, and ensure that the taxpayer no longer foots the whole of a bill that unions and employers’ associations can well afford to pay in part. I commend both these regulations to the House.

Amendment to the Motion

Moved by

--- Later in debate ---

[Baroness Blower (Lab)]

My Lords, in 2016, I was not yet a Member of your Lordships’ House and I protested on many occasions, very loudly, outside this House at the trade union legislation then going through the processes here. I trust that I shall always be able to protest very loudly outside this House, whether standing still or moving around, when legislation of this type is proposed.

The Minister talks of the valuable work of unions, but the actions of this Government belie that. My noble friends on this side, in particular my noble friend Lord Monks, have talked about the level of constraint and regulation on the trade union movement in this country. From my engagement with trade unions across Europe, both east and west, I know that to be true. This is therefore a regulation too far. While I do not agree with all the remarks made by the noble Lord, Lord Balfe, I certainly agree with his opening remarks that this is unwarranted and gives rise to the view that this Government are anti-trade union.

[Lord Callanan (Con)]

I thank all noble Lords for their valuable contributions to the debate. It is great to see the noble Lord, Lord Woodley, back with us in such hale and hearty form. I had the pleasure of replying to the debate when the noble Lord made his maiden speech, so I regard it as a particular honour that I get the chance to respond to him again tonight, albeit in slightly less harmonious circumstances.

Turning to the amendment put forward by the noble Lord, Lord Bassam, I thank him for raising his concerns, although, as will become clear, I do not agree with very much of what he said. However, I reiterate what I said at the start: unions play an important role in some aspects of industrial relations and have an important part to play in our economic recovery. It is therefore crucial that the public have confidence that they are regulated effectively and fairly.

These reforms will bring the Certification Officer in line with the powers and funding arrangements of other regulators. They will allow the Certification Officer to take robust enforcement action against an organisation that breaches its statutory obligations. The reforms will ensure that the taxpayer no longer has to pay in full for the regulation of trade unions and employers’ associations. The cost will be borne in part by the organisations that can afford it.

Despite many of the comments that were made, there are many precedents for this: a number of other regulators are funded by a levy. For example, the Groceries Code Adjudicator, the Office of Rail and Road, and the Pensions Regulator are all funded by a variety of levy schemes. The Pensions Regulator uses a banded scheme based on membership of pension funds. Companies House is partly funded by fees from company directors. The Financial Reporting Council is paid for in large part by the auditors that it regulates.

Other regulators also have a range of sanctions at their disposal. The Electoral Commission and the Information Commissioner’s Office, like the Certification Officer, can either take civil enforcement action or launch criminal prosecutions. The Electoral Commission’s compliance notices are similar to the Certification Officer’s enforcement orders. The Electoral Commission also has a range of financial penalties at its disposal, from £200 to £20,000, which mirrors those proposed for the trade union Certification Officer. Those instances are all slightly different, but it is not true that this is somehow something being imposed uniquely on trade unions.

In reply to the noble Lord, Lord Bassam, we have of course considered the affordability of the levy and how much it can grow in the future. As no organisation will pay more than 2.5% of its annual income, and lower-income organisations will be exempted from the levy entirely, I think his criticisms on that were unwarranted and have no validity. As the Certification Officer regulates both employers’ associations and unions, it is fair that employers’ associations also contribute in part towards the levy.

The Trade Union Act 2016 contains an important safeguard that requires the Certification Officer to aim to ensure that the total amount levied over a three-year period does not exceed the actual expenses she has incurred. We believe that this will ensure that the levy remains predictable and affordable. The Certification Officer has always gone about their duties in an independent and impartial way, and of course that will continue.

I will now answer some of the other points raised during the debate. The noble Lord, Lord Bassam, and my noble friends Lady Neville-Rolfe and Lord Balfe all raised the issue of electronic balloting. Indeed, the Trade Union Act included provisions to introduce electronic balloting for union elections. A review of electronic balloting was conducted by Sir Ken Knight, but before responding to the recommendations in his review, the Government were required by Section 4 of the Trade Union Act 2016 to consult relevant organisations, including professionals from expert associations, to seek their advice and recommendations. We have now done this, and we are finalising our consideration of Sir Ken’s recommendations before we issue our response in due course.

I have answered many of the points made by the noble Lord, Lord Razzall, about the comparison with other regulated bodies. I reiterate that the role of the Certification Officer is unique, as is the role of trade unions, and that comparisons with other sectors, while there are some parallels, are not totally relevant.

The noble Lord, Lord Woodley, and my noble friend Lord Balfe raised the possibility of vexatious complaints being made at a cost to unions. I must say, respectfully, that the Government disagree. When there are vexatious complaints, we do not expect that the Certification Officer will spend much time on them. The CO is a public authority, and she has to act reasonably. She cannot appoint an inspector unless a new, higher judicial test has been met that she has reasonable grounds to suspect that a breach of the regulations has occurred.

The noble Lord, Lord Bassam, raised the point about the significant limit on how much the levy could raise in similar years. The noble Lord, Lord Monks, also raised the point that the Certification Officer can somehow just do as she pleases. I responded to that in my previous comments, but we have removed most of the variable costs from the levy and, as I said, the Certification Officer, as a public authority, has to act reasonably, and that is a higher judicial test than in the current regulations.

Lastly, my noble friend Lady Neville-Rolfe asked me whether USDAW had responded to the consultation. I am afraid I do not have that information with me, but I will ask officials to look through the consultations and write to her accordingly.

In conclusion, this is not about constraining the ability of unions and employers’ associations to do their work. There is, unquestionably, a strong public interest in appropriately regulated trade unions. These reforms are about modernising the Certification Officer’s role to ensure that she can continue to deliver exactly on that. Therefore, I commend these draft regulations to the House.

[Lord Bassam of Brighton (Lab)]

My Lords, I am very disappointed by what the Minister has had to say to the House this evening. I am not persuaded away from my view that this is a vindictive piece of secondary legislation. The Minister has not really adduced a strong case in his own defence, I fear. It was interesting to hear Back-Benchers on the Government Benches making the point that this could be seen as vindictive and as having a go at unions for the sake of it, and that there was a need in the Government to grow up and try to learn to live with the trade union movement even if they do not like what it seeks to do.

The Minister did not really fully answer my noble friend Lord Hendy’s point about for-profit and not-for-profit organisations and there being a distinction. Many of the organisations that the Minister referred to have resources far in excess of those that trade unions have and are much better placed to make a contribution towards the regulation that they currently enjoy. I think the closest comparator is the Charity Commission and it does not seek to impose levies on charities. That would be unthinkable. Trade unions operate as not-for-profit organisations. They are there entirely for the benefit of their members and their role is very narrowly circumscribed to that.

I accept that we are not going to agree across the Dispatch Box on this issue. I regret that the Government have this attitude towards the valued work that unions undertake. The Minister himself talked of that. Looking at the hour and at the Chamber, it is not my intention to press my amendment because I can see that Members probably wish to move on with the Health and Care Bill. I am grateful for the time that we have had to discuss and debate these issues. No doubt we will return to them in future. I beg leave to withdraw the amendment.