Trade Union Bill

Lord Pannick Excerpts

Monday 8th February 2016 Lords Chamber

[Lord Oates (LD)]

My Lords, I am pleased to speak in support of the amendment moved by the noble Lord, Lord Kerslake, and of the other amendments in the group. I should first apologise to the Committee as I was not able to speak at Second Reading. That was an administrative mess-up on my part. I hope the Committee will forgive me, as a relative newcomer, for such a breach of protocol. I was, however, present throughout the debate, and listened carefully to the many significant points made by noble Lords, and to the Minister’s response.

We shall have the chance to discuss the merits or otherwise of the introduction of thresholds later today, but without doubt, as the noble Lord, Lord Monks, made clear, this is a significant departure from the usual democratic practices of this country—indeed, from those of any comparable democracy in the world. Given that fact, I would expect the Government, in putting forward such radical proposals, to accompany them with a means to ensure maximum participation and to take the opportunity to modernise balloting procedures.

The Minister stated at Second Reading that the Government’s purpose in bringing forward the Trade Union Bill was to modernise the relationship between trade unions and their members. One might debate whether that is not more properly an issue for trade unions and their members rather than for the Government but, be that as it may, if Ministers are sincere in their protestations about modernisation, it is unclear why they are resisting the one obvious modernisation measure—the proposal to allow electronic and other forms of balloting that could help increase participation.

The other amendments in the group, in slightly different ways, seek to achieve that purpose with the safeguard of independent scrutiny to ensure those ballots are conducted properly and without intimidation. I support those amendments because I am convinced that we could introduce electronic and workplace balloting now. However, we heard at Second Reading that the Government remain opposed. The Minister questioned whether electronic ballots would be secure or open to intimidation and vote-buying. The amendment in the names of the noble Lords, Lord Kerslake and Lord Monks, and myself, provide the Government with the opportunity to properly test this issue with the assistance of the Central Arbitration Committee, a respected body which has considerable experience on the issue of balloting, as well as with others with expertise in the specific field of electronic balloting. If security really is the issue, these amendments can help get to the bottom of whether it is possible to use alternative means of balloting in a manner as secure as, if not more secure than, the current postal ballot system.

The Government’s approach to these amendments will be important because it will give an indication of whether they are sincere in the claim, repeated by the Minister at Second Reading, that the Government’s objection to electronic voting is not a matter of principle but one of practicality. It will reveal whether the Government really want more people to participate in trade union ballots but cannot see a practical way to make it happen, as they claim, or whether, as many of us believe, their sole objective is to make it as difficult as possible for trade unions to take industrial action. I hope I am wrong in that belief and that the Minister will expose it as entirely unwarranted cynicism by accepting these amendments. If she is unable to do so, we will know where the Government stand.

[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.

--- Later in debate ---

[Baroness Neville-Rolfe]

I thank the right reverend Prelate, but I see it as different. The difference is that strikes have a huge effect on our public services and can cause significant disruption for hard-working people. We are legislating here not for the mayoralty of London, but for industrial relations. Statutory ballots require strong assurance on issues such as legitimacy, safety and security of voting.

The noble Lord, Lord Monks, mentioned that Germany and Denmark use thresholds and that these are not tied to particular ways of voting. However, I do not think that it is helpful to compare UK law and that of other countries when the context of each is so different. It is clear that all the relevant international treaties require national laws to be considered.

Finally in that connection, the noble Lord, Lord Pannick, suggested that the proportionality of the proposed thresholds might be vulnerable to challenge were the Government to refuse to allow e-balloting. I note that he acknowledges that thresholds are a proportionate response, given the widespread impact of strikes on the public. I repeat what I have said twice now: we have no objection in principle to electronic methods of balloting, but we need to be reassured on issues of legitimacy, safety and security of voting.

[Lord Pannick]

I am grateful to the noble Baroness. All noble Lords now live their lives electronically. I exempt the noble Lord, Lord Cormack, from that, but the rest of us shop, bank and conduct any number of transactions electronically. What is it about a trade union ballot that exempts it from principles that are commonplace in society nowadays?

[Baroness Neville-Rolfe]

My Lords, the simple point is that we need to be assured that the electronic ballot will give us a safe and secure outcome. I have heard from many noble Lords, including my noble friend Lord King, whose conclusion I agree with, that the fullest turnout is the best safeguard against a wrong result. Frankly, that has been the spirit of several comments this evening. I want to ensure that we take fully into account noble Lords’ detailed knowledge of these matters and experience of how we can get round the difficulties on electronic balloting. I want to reflect further on the very excellent arguments we heard today. I ask noble Lords not to press their amendments.