Lord Mendelsohn
Main Page: Lord Mendelsohn (Labour - Life peer)
Baroness Neville-Rolfe
This amendment, which I received late last night from the noble Lord, Lord Kerslake, seeks to require a Secretary of State to conduct a review of facility time, involving the collection of a significant amount of additional data and estimation. The list is long and includes a cost-benefit analysis of facility time, as well as data around tribunal cases, dismissal cases, voluntary exit rates and workplace injuries. Some of the information in the noble Lord’s list would be available through the transparency requirements proposed in the Bill but much of it would not. My concern is that the collection of this long list of data would create a significant burden on both employers and government departments.
Of course, the Government would consider several of these elements—for example, the total cost and total hours used for facility time—if the reserve powers were ever required, although it is by no means certain that they ever would be. We would consider all relevant—
Lord Mendelsohn (Lab)
I am grateful to the Minister for giving way. This is an interesting point and it is important to look at the costs and benefits. Great store has been set on the benefits attributable to opening up transparency in this measure. The impact assessment talks about the figures, which have been much paraded, relating to the benefits for the Civil Service of transparency on facilities. It explicitly says:
“While it is not possible to prove how much of this fall of 0.19 percentage points of the Civil Service pay bill … is directly attributable to the increased transparency resulting from reporting time spent, this increased transparency is likely to be a key factor accounting for at least some of the reduction”.
If there is no clear evidence that there are significant benefits, I think that that speaks ever more clearly for the point that the noble Lord, Lord Kerslake, makes in his amendment. I do not think that it has been established that there are clear benefits to it.
Baroness Neville-Rolfe
The noble Lord makes a fair point. As I have said, we would consider all relevant factors before using the reserve powers, and our impact assessment addresses some of those. If you are looking to use a reserve power, you obviously look at both sides of the argument.
I have not had time to do much about this amendment and I am not promising a concession but I would be very happy to meet the noble Lord and other interested noble Lords to discuss further the concerns around the amendment. In the mean time, I ask the noble Lord to withdraw the amendment.
Baroness Neville-Rolfe
My Lords, I know this has been an emotional debate but I believe strongly that the power of sunlight needs to be introduced to facility time in the wider public sector. On the back of important manifesto promises, this and the back-up power that we debated in the previous group of amendments was of course accepted without amendment in the other place, despite the modest increase in regulation they represent. As my noble friend Lord King said, to use the power, we would have to carry an affirmative order in both Houses.
I set out in the debate on the previous clauses the reasons why the Bill introduces requirements on public sector employers to publish information on facility time. It will be for public sector employers, not the Government, to manage the amount of time, if efficiencies exist, having had regard to the information that is published under Clause 12. However, it is only fair to the taxpayer that a reserve power exists should employers choose not to limit facility time to a reasonable amount.
Contrary to much of what we have heard, Clause 13 does not seek to ban facility time. That is a misconception that has been repeated, perhaps outside the Chamber, but it is not our intention. I say on the record that it is very much a power of last resort. Only if publication and the proper monitoring and recording that follow do not achieve the aim of having reasonable levels of facility time will it be necessary to consider the imposition of a cap.
Lord Mendelsohn
I am just troubled by this notion of reasonable time. I have one particular question, although the Minister will probably not be in a position to answer at this stage and may have to go away and look at it. The Sentencing Council’s Health and Safety Offences, Corporate Manslaughter and Food Safety and Hygiene Offences Definitive Guideline establishes a very high level of fines for breaches of it, which apply to the public sector as well. Removing facility time which would remove any health and safety cover which currently exists would put any such offence into the high culpability level. That would engender fines for any organisation with a turnover of over £50 million up to a level of £6 million; for anything over £1 billion, it would be substantially more, now that we have had case law from the Supreme Court. By introducing this power over facility time, have the Government not considered that they are risking a huge amount for other public bodies, and even causing difficulties for Ministers themselves? By imposing restrictions on the health and safety cover or arrangements that have previously been available, are they not changing the terms here? Have the Government taken advice on how this will affect the application of these relatively new sentencing guidelines, and would she consider doing that if she has not already?
Baroness Neville-Rolfe
I will certainly look at the sentencing guidelines. However, we looked at health and safety under the last amendment and noted that health and safety duties applied notwithstanding what we are discussing here.
It is particularly important to monitor the cost of time taken for trade union activities, for which there is no legal right to paid time off work, unlike union duties, for which reasonable paid time off is a statutory right. I think I already said, in response to the noble Lord, Lord Kerslake, that we will look very carefully before using the back-up power. Points were of course made about what cap might be appropriate and indeed the point was made, I think by the noble Lord, Lord Harris, about the lapse of time before the power might be used.
The noble Baroness, Lady Hayter, argued that the cap was open-ended and could interfere, I think, with the freedom of association rights under Article 11. If the need arose to use the reserve power, it would be exercised in a way that took full account of Article 11 and relevant ILO conventions. It is an entirely legitimate aim for the interests of trade unions and their representatives to be balanced against those of taxpayers, who ultimately fund the use of facility time. In addition, regulations under this power can be made subject to exceptions where necessary—for example, we sometimes do that to ensure compliance with EU obligations—and these regulations are subject, as has been said, to affirmative resolution.
The noble Baroness also mentioned the power to impose contractual changes. I think she was concerned about the right to respect for possessions under A1P1. Any impact on existing contractual entitlements will apply only prospectively; that is, from the date when any regulations are brought into force under the clause. We respectfully suggest that A1P1 has no application here. It protects existing possessions; it does not extend to a right to a guaranteed income in future.
The noble Baroness also asked about the impact assessment and the basis of the £100 million figure. As she may know, the figures are based on the Civil Service experience, where these transparency measures reduced the expenditure on facility time to 0.07% of the pay bill from a previous figure of 0.26%. The National Audit Office reports that the annual pay bill for the public sector, excluding the Civil Service, is £153 billion, so a reduction similar to that seen in the Civil Service would provide savings of more than £100 million. Of course, this can only be an estimate, and we are introducing the publication requirement precisely because there is no up-to-date information—I accept the noble Baroness’s point—on the cost to the taxpayer of facility time subsidies.
Amendment 90A would remove local authorities in England, the GLA and the NHS from the scope of the reserve powers. More transparency from those bodies has revealed that some local authorities spend twice the percentage of their pay bill on facility time as others, and where such discrepancies are revealed, taxpayers deserve that, ultimately, there should be a power in place for such spending to be managed.