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

Lord Stevenson of Balmacara Excerpts

Monday 13th January 2014 Lords Chamber

[Baroness Williams of Crosby]

I very strongly support the amendments tabled by the noble Lords, Lord Monks and Lord Stevenson of Balmacara. Since we have seen some of the troubling issues—for example, the keeping of a blacklist in the construction industry—it is clear that somebody whose personal details have been revealed can be at risk in a way that should not be acceptable. It is very sound and sensible to propose that there should be very stringent sanctions against any inspector who fails to recognise that confidentiality of individuals. It is accepted in this country that very strong and good relations should exist between responsible employers and responsible trade unionists. An amendment like this should be supported by the House.

[Lord Stevenson of Balmacara (Lab)]

I declare an interest as a retired member of a large union. As the noble Baroness has just said, it is common ground that the unions in Britain play a significant part in the modern economy. They should be cherished, not castigated. As has been mentioned, if the Government had brought forward such a burdensome set of duties on any other section of civil society, there would have been an outcry. Well, there is an outcry and the Government should listen.

For many employees, their membership or lack of membership of a trade union is a private choice, and one which they desire to keep confidential for what may be very legitimate reasons. The knowledge that under these new powers, trade unions could be required to provide their membership register to a government-approved official for “good reason” may act as a disincentive for workers to join unions, particularly in light of the current concern over union blacklisting. As my noble friend Lord Monks said, the Government are introducing this series of measures at the same time as the full extent of the scandal of blacklisting in the construction industry is gradually coming to light. This is by no means the only industry in which members of a union may wish to keep their membership confidential for fear of being subject to discrimination.

These measures clearly go beyond what is necessary and they are certainly not proportionate if they are to achieve any legitimate aim behind the proposals, if indeed there is one.

[Viscount Younger of Leckie (Con)]

Before I address the amendments I would like to say a few words about blacklisting, which was raised by the noble Lords, Lord Monks and Lord Morris, and my noble friend Lady Williams, because at each stage of this Bill we have sought to emphasise how seriously this Government take any allegations of blacklisting. The Trade Union and Labour Relations (Consolidation) Act 1992 makes it unlawful to refuse to employ a person because they are a member or not a member of a trade union or because they refuse to join or leave a trade union. This position was strengthened in 2010, when in response to the Consulting Association blacklist uncovered in 2009, the Government introduced anti-blacklisting regulations and increased the penalties for unlawful processing of data. Data controllers can now be fined up to £500,000 for serious offences. There have been several allegations of new evidence of blacklisting to date, but no evidence of this practice recurring. The Scottish Affairs Select Committee and Information Commissioner are both currently investigating the potential for ongoing offences, and the Government continue to take a close interest in this issue. Therefore, the provisions that we are considering today do not increase the risk of blacklisting, because of the protections in place around the treatment of membership data.

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[Lord Lea of Crondall]

My Lords, I think the word that my noble friend Lord Whitty could not quite conjure up, because it is not often used in this House, is hypocrisy, and it has to do with red tape. My noble friend Lord Monks reminded us that, not only because of Christmas and the new year but also because of the pause, we are between Parts 1 and 2 of the Bill, and now are dealing with Part 3. It is all rather confusing. There is overkill of all these lists of people who have some sort of role. We mentioned the electoral roll and how 80% might be up to date. I think that 50% would be a very good score for a candidate examined on this set-up even when it has been a year in use. It is quite remarkable. I will not go through the whole list.

It reminds us of the point made by a number of colleagues at Second Reading to do with the famous impact assessment and the enormous costs falling on the trade unions and many other people as well, which requires some justification. In particular, some justification is required of a Government whose raison d’être seems at some times to be to cut out red tape. If this is not red tape, what is it? The Government are clearly are going to be obstinate and will stick to their guns, whether the bowling is fast bowling, a googly or whatever else. We know that they have been taken over by dogma on everything to do with industrial relations.

Finally, I have here the report about which my noble friend Lord Monks and I have had a conversation. We asked people in the international departments of European countries to tell us, in answer to a questionnaire, what goes on in these successful democratic countries on these sorts of questions. No one remotely has a top-heavy superstructure such as this. I have little doubt that the only reason why a Labour Government might not repeal this on day one is that they would have very much bigger fish to fry, no doubt, in some respects.

I have little doubt that the life of this legislation will be very short, which is the only saving grace I can think of to mention in support of my noble friend Lord Whitty on this amendment.

[Lord Stevenson of Balmacara]

My Lords, it is interesting that the questions we are left with keep coming back and keep being unanswered. What is the serious public policy issue behind this proposal? What exactly is the problem? What will this Bill achieve that current legislation does not achieve? Will the measures being proposed do more than simply increase the regulatory burdens on trade unions? We have all those questions and very few answers.

We know that union membership is already regulated by the Trade Union and Labour Relations (Consolidation) Act. Section 24(1) puts a duty on unions to maintain an up-to-date register of members’ names and addresses so far as reasonably practicable. This legislation has stood the test of time since the days of Mrs Thatcher. As has been said already, we are not aware of any calls having been made to the Government to extend this provision. BIS, the certification officer and ACAS have confirmed under freedom of information requests that they have received no representations for such a measure.

As my noble friend Lord Whitty said, it may be that a better self-certification system could be an advantage. I say “it may be” because we do not know what the problem is but cloaking the issue in some spurious idea that there is some public concern out there that would be remedied by having an additional checking arrangement is simply not sufficient.

[Viscount Younger of Leckie]

My Lords, I turn to two amendments which seek to drastically reduce the effect and extent of the provisions as drafted. This would in practice undermine the Government’s key policy objective, which is to introduce a proportionate and effective reporting and enforcement mechanism alongside the existing duty of unions to maintain an up-to-date membership register so far as is reasonably practicable.

Amendment 29 would remove Clause 37 and the role of the independent assurer from the Bill altogether. Clause 37 gives credibility to the assurance process by requiring independent scrutiny, which is in line with the Government’s overarching aim to provide greater assurance of the maintenance of trade union membership registers for the benefit of members, employers and, importantly, the wider public. As some unions become large organisations representing members across a variety of employers and workplaces, their administrative requirements become more complex. As a consequence of the prevalence of very large unions in recent years, there is also now an increased public perception of a union’s scope of influence.

This may be an appropriate moment for me to restate what I said in Committee: I am not minded to comment on the media coverage of particular industrial disputes, such as the Grangemouth refinery or, more recently, the issue affecting Howdens. Instead, as I should, I will focus on the separate issue at hand relating to the obligation of unions to maintain up-to-date membership registers. Perhaps this can also be described as playing a straight bat. I hope so.

The nature of union membership data means that they decay easily—for example, addresses can quickly become out of date. About 2 million people move in and out of union membership every year, which equates to around one in four union members. The register for a union which has a 25% turnover in membership could theoretically be entirely out of date in four years. Unions are already required by statute to maintain a register of the names and addresses of their members. What we are introducing is annual reporting on the compliance of unions with this duty where currently there is none. I believe—

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[Lord Balfe (Con)]

My Lords, let me first apologise for not taking part in the earlier stages of the Bill. As a new Peer I had not made my maiden speech and therefore under the conventions of the House could not intervene.

There is a common misconception in many parts of the United Kingdom that trade union membership equals Labour Party support. This is not true. Setting aside the fact that voter turnout among trade unionists is not dissimilar to that of the rest of the population, of those who do vote around one third of TU members vote for the Conservative Party—may that grow in the future.

Unions are already firmly regulated in two ways, first by provisions in the Trade Unions and Labour Relations (Consolidation) Act 1992, passed by the last Conservative Government and left on the statute book by the Labour Government. I noticed the noble Lord, Lord Lea, mentioned the life of legislation as being short, but that is not the precedent we have from the party opposite when it was in government—indeed, it left most trade union legislation firmly in place. Secondly, the contractual relationship between unions and their members is set out in each union rule book, which is a legal document that governs how unions operate. In order to change its rules, a union must obtain support from its members. Having received that support, the rule changes can be made only within the context of statutory legislation.

In order to ensure—and I am sure we all support this—that small and unrepresentative groups of members cannot change the rules of unions without fully consulting the members, unions all have democratic procedures in their rule books which must be followed if changes are to be made. In order to give effect to the provisions of the Bill, many unions will have to hold special rules revision conferences where members vote to change their union rule book to comply with the new provisions. This is, of course, especially and usually the case with larger unions.

Tonight I ask the Minister to consider two points: first, to raise the exemption limit in Clause 37 from the present 10,000 members to a figure of around 40,000. Mention has been made of turnover in big unions. Small unions often face a very different situation. Many are professional unions, such as the radiographers or the physiotherapists, who will be caught by this Act, but have a very low turnover indeed, as do many of the others. If we went from 10,000 to 40,000, we would go from 22 to 37 unions but we would exempt all the unions that traditionally have a low turnover and a highly professional membership.

The noble Lord, Lord Martin, who is not presently with us, earlier mentioned small unions. I had the privilege for many years to belong to a very good small union called AUEW-TASS. I must say that since TASS merged, it has got more and more out of touch. Now I am almost ashamed to say I am a member of Unite, as I remain a member of Unite. I still look forward to the day when we might have an engineering section in Unite that could compare with AUEW-TASS. None the less that is a digression. Even if this change were accepted, 90% of union members would remain within the assurer provisions of the Bill.

Secondly and finally, no doubt the Government and the certification officer will want to ensure that unions are able to make these changes following the agreed procedures. This will mean giving notice to members of a special conference. Good administration—which I am sure we all support—would indicate that a transition period of at least 17 months would be helpful. I would welcome an assurance from the Minister that the transition period after commencement will at least accommodate the 17 months, because it is in all our interests that this is done properly and competently.

[Lord Stevenson of Balmacara]

My Lords, I have never in my long life met a Conservative member of a trade union. It is very nice to be introduced to one and to hear him speak. It has been very evident from the speeches we have heard, both in this small debate and previously, that if the Bill is to progress and be brought into law it must operate with the best chance of success otherwise it will not have been worth a candle doing it. As my noble friend Lord Monks said in an earlier intervention, the right way to do this is to give the unions—particularly the larger unions—adequate time to comply with the Act in a way that is cost effective, economical and practical, but also from their point of view. Unions are, after all, independent self-governing bodies. As the noble Lord, Lord Balfe, said, they rightly have procedures for making complex changes in their constitutions and it will be necessary, as the Bill recognises, that the unions will make some changes through rules conferences and the like. This is not to say in any sense that there is not anything wrong with what is currently in the Bill, but I detect in some of the comments made that we are still not absolutely clear about how the procedures will operate and the timescales that will be on and that will interfere a little bit with transparency.

When he responded to this point in Committee, the Minister said that he shared the sentiment that,

“trade unions should be given sufficient time to prepare”,

and he hoped he could,

“offer a positive and emollient answer”,—[Official Report, 11/11/13; col. 596.]

to allow time for the bedding down of the new legislation. I take it from that that he is still interested in trying to make sure that this works well. Picking up on what has just been said, I get to 17 months from the comments that were made during Committee if I follow two tracks. The first is that a union whose reporting year ends on a fiscal basis—that is, 31 March—would not need to submit a report for the year ending 31 March until the end of August 2015, which I think is 17 months if I do my maths correctly. However, a union that reports on a calendar-year basis would have a little more time. It would not have to submit its report for the year ending 31 December 2015 until the end of May 2016.

That is the sort of level of complexity which we are operating on. If we are going to fit a 17-month period, which I think was mentioned earlier as being appropriate, combining it with a Royal Assent, possibly by March 2014, and a period of consultation on the question of how assurers are going to be both defined and appointed, that suggests that it would be sensible to have one further round of discussions before it is finalised. Will the Minister consider having a short meeting with me and a few colleagues to try to run over this so that we can get some absolute clarity on it? Thereafter, we can all work together, not in any sense to shake the principles which are part of this part of the Bill, but to make sure that they work effectively.

[Viscount Younger of Leckie]

My Lords, Amendment 33A could delay commencement of the provisions in Part 3, as they would not come into effect until the certification officer knows that all trade unions with more than 10,000 members have changed their rules to provide for the appointment and removal of an assurer. I know that noble Lords have been concerned that unions should have sufficient time to prepare for these new arrangements. In particular, we have been told that many unions do not routinely have an opportunity to make rule changes—I think the noble Lord, Lord Monks, alluded to that earlier. I am happy to offer reassurance to the noble Lord, Lord Stevenson, and other noble Lords that unions will have the time that they need. They will have at least 17 months to comply from the point at which the legislation takes effect, because the provisions will not apply retrospectively.

Unions will be required to submit a membership audit certificate alongside their annual return for the first full reporting year after the changes become law. The 17 months is the combination of the 12-month reporting period plus the five months that is allowed after that period to submit the annual return. The earliest that the provisions will take effect is October this year, which would depend on Parliament granting Royal Assent next month. That being the case, unions would have a minimum of 25 months from Royal Assent. In practice, many unions will have much longer.

Unions have different reporting years: many work on either a calendar or a financial year, which the noble Lord, Lord Stevenson, mentioned. Were the legislation to take effect in October 2014, a union with a calendar reporting year would first provide the membership audit certificate by the end of May 2016; for a union with a financial reporting year, it would be the end of August 2016. The noble Lord, Lord Monks, raised the issue of allowing unions sufficient time to meet the new requirement. I entirely sympathise with that and have said something about it just now. I have to confess that this is not the most straightforward of timetables to set out and I would be very happy to meet the noble Lords, Lord Stevenson and Lord Monks, and any other noble Lords to clarify the timings and state why we think this would be sufficient for trade unions to make the transition. That reflects the discussions that we have had with the TUC and others.

I take this opportunity to warmly welcome the noble Lord, Lord Balfe, and the experience that he brings on union matters, something I mentioned earlier in respect of the noble Lord, Lord Monks; it is only fair to acknowledge the experience that the noble Lord, Lord Balfe, has as well. I have had some discussions with him, at his request, on the question of whether the £10,000 threshold is set at the right level. Our primary objective is to supply assurance to union members, and to the wider public, about the existing statutory requirement to maintain an up-to-date register of members. The requirement to maintain a register applies to all unions, no matter what size. However, at the same time, the Government do not want to unnecessarily prohibit the creation of trade unions or undermine their ability to operate. We believe that it is possible for a union to be confident in the accuracy of all its records where its membership is small. We also believe that the wider public will think it reasonable that special provision is made for the smaller union and accept that where numbers are smaller it is reasonable to rely on the union’s own assessment.

Self-certification means a union officer assuring that every individual record is up to date, so far as is reasonably practicable. We think that this is achievable for unions with 10,000 members or fewer, but it becomes much more challenging where there are more members than that, which was part of the debate that we had earlier. The union official would have to be confident of the position and union members and the wider public would have to have trust that this was reasonable—a point, again, that I made earlier. By contrast, independent assurance focuses on whether the system in place for monitoring records is satisfactory, as opposed to making a statement about the accuracy of individual records. I therefore believe that this amendment is unnecessary and I ask the noble Lord to withdraw it.