Trade Union Bill (Seventh sitting)

Nick Boles Excerpts

Thursday 22nd October 2015 Public Bill Committees

[Stephen Doughty (Cardiff South and Penarth) (Lab/Co-op)]

I beg to move amendment 75, in clause 8, page 4, line 16, after “Subsection 1” insert

“and section 233(1) (a) of the 1992 Act, as amended by this Act”.

The amendment would ensure that any re-ballot or renewal of mandate, or the first ballot, is not prejudiced in any way by any unofficial action that may have taken place.

I take on board what you said, Sir Alan, and will attempt to move at a brisk pace to make progress. However, this Bill has very serious implications, and we need to ensure, as the Opposition, that it receives adequate scrutiny, particularly given many of our objections to it.

Amendment 75 is a probing one, to understand the implications of unofficial actions that may have taken place for a union’s ability to conduct subsequent ballots. The law currently prevents a union from running a ballot for industrial action if its members have previously taken unofficial action, or what some would determine “wildcat” action, in a dispute. That can limit a union’s ability to seek to resolve an ongoing trade dispute and ensure that its members’ democratic wishes are given effect. The amendment would ensure that a prior unofficial call to action would not prevent the union from running a subsequent ballot.

Obviously, I do not condone unofficial actions or actions outside the law, but we need to accept that they take place. We have explored many circumstances in our considerations of the Bill in which wildcat action may in fact be encouraged by the Government’s legislation. I do not want that to happen, and I am sure the Government do not want that to happen, but it is a potential consequence.

It is important that we understand the implications of unofficial action for trade union members engaging in legitimate ballots and wanting to have legitimate discussions about action they might take. Will the Minister clarify the impacts of any unofficial action that takes place before a first ballot or between a first ballot and any subsequent reballoting? We discussed the timing of that at great length, but I would like some clarification.

[The Minister for Skills (Nick Boles)]

I will endeavour to be as pithy as I can. The merest raised eyebrow on your part, Sir Alan, will cause me to sit down quickly.

I appreciate the shadow Minister’s desire to ensure that the occurrence of any unofficial industrial action does not affect a union’s ability to rely on a mandate that it has legitimately secured or to seek a further such mandate. I hope to provide him with assurance on that point.

In order to have the support of a ballot and for the union therefore to benefit from legal protection, a number of provisions first need to be satisfied, one of which is that industrial action has to be called by a person specified or specifically described in the voting paper—that is to say, a union. That ensures that any industrial action not under the control of the union can be subject to legal action by an employer, which is necessary to prohibit so-called wildcat strikes and to prevent such disputes from snowballing. The fact that unofficial industrial action is not legally protected does not affect a union’s ability to secure a valid ballot mandate or to call official industrial action on the basis of a valid ballot mandate. That is the current position, and the Bill does not alter that. I trust that that assists the hon. Gentleman, and I ask him to withdraw the amendment.

[Stephen Doughty]

I thank the Minister for that clarification. It is helpful to have it read into the record. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question put, That the clause stand part of the Bill.

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[Stephen Doughty]

I beg to move amendment 26, in clause 9, page 4, line 37, leave out

“or encourages its members to take part in,”.

With this amendment, I hope to cover some of the Opposition’s concerns about clause 9. We have also tabled a series of other amendments, and we look forward to hearing the arguments of Scottish National party Members on their amendments in due course.

We come to the “Franco-style” sections of the Bill. They are not my words, but those of the right hon. Member for Haltemprice and Howden (Mr Davis). This clause, above all others, has served as a recruiting sergeant to those outside this place who are implacably opposed to the Bill. The Government’s own Regulatory Policy Committee condemned it, and a coalition of concerned leading civil liberties groups—Liberty, Amnesty International and the British Institute of Human Rights—gave extensive evidence, including in oral form, to this Committee, and said that they have many concerns about this part of the Bill. The clause, which has all the hallmarks of being penned in the Secretary of State’s hand, would be unforgivable at the best of times, but on the 800th anniversary of Magna Carta, the document embodying Britain’s most fundamental freedoms, I believe it represents an alarming and daring attempt by the Government to stifle the legitimate rights of ordinary working people.

The clause will introduce a new restriction on picketing activities by trade unions and their members. Any failure to comply with those overly prescriptive requirements will expose trade unions to legal challenges. Employers will be able to apply to court for an injunction to prevent or impose restrictions on a picket, or even for damages if, for example, a picket supervisor fails to wear an armband or inadvertently misplaces their letter of authorisation. I am sure we will discuss the specifics of some of those issues in due course.

If hon. Members thought the Government’s proposals stopped there, they would be wrong. Over the summer, the Government ran a very short consultation. We have already discussed the concerns that many of those affected by the clause have about the consultation process, which many echoed in oral evidence. They said that on this issue, in particular, the consultation was insufficient, given the scale of the changes.

The TUC highlighted a range of additional restrictions on union pickets and protests, including—these were mentioned in the consultation—a requirement that unions publish picket and protest plans 14 days in advance, detailing where, when and how they plan to protest and whether they propose to use social media, Twitter and Facebook accounts to draw attention to their campaign. We heard the concerns of my hon. Friend the Member for Gateshead about the potential for secondary tweeting and wildcat Facebook action. We can have some fun about this, but the reality is that it is very serious because there are significant implications for police time, as we heard in the police evidence. In my view, it simply does not make sense.

There are also new criminal offences prohibiting intimidatory conduct on picket lines, even though such an offence already exists. Again, I clarify that we in no way condone intimidatory and inappropriate actions by individuals involved in protest or picketing. Those actions need to be dealt with appropriately, but the fact is that those offences already exist.

We understand that the Government are considering whether to direct local authorities to use antisocial behaviour orders against union members participating in pickets and protests. I have always been a big supporter of ASBOs, but they were designed with specific behaviour in mind. To extend them to activities that are—

[Nick Boles]

On a point of order, Sir Alan. The hon. Gentleman is referring to a whole lot of questions that were asked in the consultation document, none of which has any application to any of the clauses in the Bill or any of the new clauses or amendments tabled by the Government. Is it in order to discuss a whole lot of entirely speculative questions that are not dealt with in the Bill?

[The Chair]

Minister, how the hon. Gentleman approaches the amendment is down to him. I ask him to be concise in his endeavour to search for the truth, or falsehood as it may be. However, it is his time and he is moving the amendment, so he is in order.

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At the very crux of our objections to the proposals is the firm belief that trade union members have the right to freedom of association. They have the same human rights as every individual in this room. Those rights are not weakened when they put a union card in their purse or pocket. By the time that union members reach picket lines, they will have been through a ballot process with an arbitrary threshold, without the right to vote online or in their workplace. They will be in dispute with their employer, with their pay, jobs or services to which they devote their lives on the line. They will be subject to an inspection of their records whenever the certification officer feels like it. They will have had to give 14 days’ notice of their plans to employers, potentially including whether they plan to use social media on the day of the picket. When picketing, without committing any crime, they will be forced to wear a badge and to give their name to a police officer while carrying a letter of authorisation that any passer-by could request to see that says that they have the right to be there. No other group in civil society has such a burden placed upon simply for standing up for their rights and making their voices heard. The clauses are nothing more than an ideological attack on a group of people. They are discriminatory, and I urge the Minister to rethink them.

[Nick Boles]

Before I address the detail of the amendment moved by the hon. Member for Cardiff South and Penarth, let me state clearly that the Government recognise peaceful picketing as an entirely lawful activity. People must be able to exercise their rights to assemble and to freedom of expression. The Bill does not change any of that. The law has been developed in order to protect such rights. It provides unions with statutory immunity against claims for damages to enable individuals to peacefully persuade others to break their contracts.

The rights to assemble and to freedom of expression are rights that apply to all of us. That is the whole point. I am confident that the hon. Gentleman will agree that that right should not be exercised by some at the expense of others. We cannot defend picketing being used as an opportunity to intimidate people who exercise the same rights to freedom of expression and of assembly, which, in their case, is the right to disagree with the union’s position when it is in dispute with the employer and to go into work.

The Bill will require unions to supervise picketing. The main requirement is to appoint a picket supervisor. That provision is in the code of practice on picketing, which states:

“Wherever picketing is ‘official’ (i.e. organised by a trade union), an experienced person, preferably a trade union official who represents those picketing, should always be in charge of the picket line.”

The code also states that picket organisers should ensure that

“the pickets understand the law and are aware of the provisions of this Code, and that the picketing is conducted peacefully and lawfully.”

That provision has been in the code of practice for more than 20 years, and no representation has ever been made that expecting people to abide by it represents an infringement of their freedom. The code provides further detailed guidance on the functions of the picket supervisor that, if followed, should result in peaceful picketing.

The hon. Member for Cardiff South and Penarth and his hon. Friends have said that unions already adhere to the code of practice on picketing, and we have always agreed with that point—indeed, the consultation made that clear—but it does not always happen. For example, Transport for London told the Carr report:

“Conduct on the picket line towards employees not participating in industrial action can be aggressive. The word ‘scab’ is often used. Frequently we have seen swearing and shouting directed at an individual”.

Such behaviour is just not excusable. The picket supervisor therefore plays an important role in ensuring that pickets understand that such behaviour is not in accordance with peaceful picketing.

[Jo Stevens]

Can the Minister tell us whether any arrests were made in that TfL example?

[Nick Boles]

I do not have that information to hand, but I am happy to write to the hon. Lady, and obviously to copy in the rest of the Committee, on that question.

The appointment of a picket supervisor comes from the code; it is not new. The other provisions in the code will continue to guide the picket supervisor and the pickets to ensure that the conduct of picketing is peaceful. Where the picketing is peaceful, the union’s statutory immunity will not be compromised. I make it clear that an individual who breaks the law on the picket line is responsible for their own actions—the union is not responsible—but it is important that we take steps to ensure that picketing activity does not resort to intimidation in order to obtain support for a dispute.

The amendment would instead limit the appointment of a picket supervisor only to picketing that is organised directly by a union. Surely there should be no distinction between whether the picketing is organised or supported by a union. The law should apply to all picketing, without exception. The amendment would undermine the intended purpose of this clause by allowing a union to encourage picketing activity among its members without the supervision that I believe is necessary for the reasons I have set out.

The hon. Gentleman asked a specific question on whether the clause will prevent a union from expressing, online or somewhere else, solidarity in general terms with industrial action conducted elsewhere in the country, possibly by another union at an employer where the union expressing solidarity is not involved. The answer, of course, is no—that is freedom of speech—but where a union is encouraging picketing activity among its members without supervision, the application of this clause will be necessary. I hope that he will withdraw his amendment.

[Stephen Doughty]

We will discuss some of the other issues on this subject in detail when we consider the following groups of amendments. I appreciate the Minister’s clarification on the specific question that amendment 26 seeks to address.

There is a fundamental problem here, and I hope the Minister will elaborate on it in his further comments. What evidence base is he using when he talks about these examples of intimidation? No Opposition Member condones intimidation or other such activities—indeed, people carrying out such activities should be prosecuted under existing laws—but what percentage of overall picketing activity in the past year or five years does he believe has resulted in such activity? My hon. Friend the Member for Cardiff Central made a good point, and we have also heard a good point on the dispute between the London fire brigade and the FBU. The commissioner could not give us facts on whether FBU members had been arrested or prosecuted, but I understand that an agency worker was in fact arrested for potentially violent actions towards an FBU member. There is a big problem with the way in which this issue has been characterised.

The Royal College of Midwives was clear on the implications of this clause and the associated provisions:

“We believe the intention is to frighten and confuse midwives from exercising their right to protest for fear that they will make a simple mistake and be prosecuted.”

I am glad for the Minister’s clarifications, but we need to consider the overall impact of this clause and the related provisions.

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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[Stephen Doughty]

Indeed, I do share that concern, because, as we have seen, the Government have not published the regulations in respect to the Bill and they have not published the consultation responses. It is clear that they are trying to bring about much of this in as much darkness as possible. That is of great concern to all those who will be affected.

In conclusion, I re-emphasise that we will be happy to support the hon. Member for Glasgow South West should he seek to press his amendment.

[Nick Boles]

Before I move on to the detail of the amendments, I will highlight again that the main requirements of the clause relate to provisions that are already in the code of practice on picketing, that they have been in that code since 1992 and that almost all unions since then have seemed to be perfectly happy to abide by them. In relation to police contact, the code says:

“Whether a picket is “official” or “unofficial”, an organiser of pickets should maintain close contact with the police…In particular the organiser and the pickets should seek directions from the police on the number of people who should be present on the picket line at any one time and on where they should stand in order to avoid obstructing the highway.”

The code goes on to say:

“He should have a letter of authority from his union which he can show to the police officers or to the people who want to cross the picket line.”

Obviously it was drafted when there was less recognition of the possibility of a female picket supervisor. We might want to amend that in future.

[Jo Stevens]

Will the Minister give way?

[Nick Boles]

I want to make a little more of my argument, but of course I will be happy to take the hon. Lady’s intervention in a bit.

I turn first to amendment 28. To require in law that a picket supervisor contacts a senior-ranked police officer for this type of issue would be novel. I can find no precedent for such an approach. I am concerned about the potential practical difficulties for a picket supervisor being required to make contact with such a senior-ranking police officer as a chief constable, especially given that the purpose of the requirement to inform the police is so that they know which individual to contact in the event that a problem arises on the picket. That might be, for example, if the picket supervisor is absent from the picket at exactly such a moment.

There are only about 45 chief constables in Great Britain and they each have a wide portfolio of responsibilities. A picket supervisor may well not be able to contact a chief constable and, even if he or she did, the chief constable may not be able to respond quickly enough in such a scenario. That in turn could lead to problems for the union: for example, uncertainty as to whether a chief constable had indeed been informed could lead to doubt about whether the picketing can proceed and to legal challenge. That is why there is a broader reference to inform the police in the clause. That is more flexible. It will meet the objective and ensure that there is minimal delay for all concerned while still fulfilling data protection requirements. It is also important to recognise that that reflects the language of the code, which, to our knowledge, has not caused any problems.

There has been some commentary in the media about data protection concerns. The police are bound by the Data Protection Act 1998, including the principle that personal data must be processed fairly and lawfully. Any concern that the police have mishandled such data can be brought before the Independent Police Complaints Commission for its consideration. Complaints on data handling can also be brought to the Information Commissioner.

[Jo Stevens]

I do not accept that the Government are simply transposing the existing code of practice provisions into legislation. Even if I did accept that point, why is primary legislation necessary if, as the Minister suggests, the code of practice does not cause any problems and everybody is happy with it?

[Nick Boles]

I do accept that this is a matter of legitimate debate, but there are all sorts of laws on the statute book that almost all citizens in the country abide by almost all the time, and that does not mean that we do not think those laws should be on the statute book. Laws are there not just to deal with the general behaviour of most people, but to deal with the extreme behaviour of a very small number of people in very rare circumstances. It is because most unions have abided by these provisions so happily and successfully that we feel it is reasonable to expect all unions in all strikes to abide by them. I fail to see that this is an egregious step. When we were drafting the Bill, I was clear to my officials that I did not want to go further than the existing code. I believe we have satisfied that in the Bill, so I fail to see the hon. Lady’s concern.

[Ian Mearns]

Surely the sort of extreme behaviour in exceptional circumstances that the Minister is talking about is already covered by aspects of the criminal law.

[Nick Boles]

That is certainly true of a whole range of criminal offences, but it is perfectly reasonable for us to want to root out the specific failure in some cases—I accept they are rare—to inform the police of when pickets are going to happen and whom the supervisor is, and to ensure that the supervisor is readily contactable. It does not infringe the liberty of anyone who currently accepts all these provisions and has done since 1992.

[Ian Mearns]

Will the Minister give way?

[Jo Stevens]

rose—

[Nick Boles]

I am just going to move on, because we are never going to agree on this issue. I have stated my argument, and Opposition Members have stated their argument.

Let me move on to amendment 29 and the proposal of the hon. Member for Cardiff South and Penarth to remove the requirement to inform the police where picketing is to take place. Knowing the location of where picketing is to take place will help the police ensure that sufficient resources are available in the event of problems arising on the picket line. It will help the police to respond quickly and resolve any problems. This is not new. The code of practice on picketing sets out that a picketing organiser should establish advance consultation with the police and—I have already directly quoted from it—seek directions on where they should stand to avoid obstructions of the highway. The combined effect of those provisions is that the police will know where picketing will take place.

I understand that the hon. Gentleman is concerned that such advance notification could restrict the right to assemble. I assure the Committee that the Government fully recognise the right to assemble, but we also recognise other people’s freedom and their right to go about their business and move freely. Such rights need to be balanced, and the provision in clause 9 achieves that balance.

Amendment 104 seeks to amend the effect of clause 9 in a number of different ways, which I will address in turn. The purpose of clause 9 is to require union supervision of picketing. The appointment of a picket supervisor is the main mechanism by which that is to be achieved. The picket supervisor should rightly be a trade union official or a member of the union who is familiar with the union’s approach and the reasons for the industrial dispute with the employer.

The amendment would remove the clarity that the picket supervisor should be an official or a member of the union. It would have the effect of removing the provision that the picket supervisor to be appointed must be an official or trade union member who is familiar with the code of practice on picketing. This important point came up earlier in the debate, and I say again that the code sets out practical and pertinent guidance to ensure that picketing is conducted peacefully and lawfully. A picket supervisor’s familiarity with the code represents sensible and practical preparation for someone about to undertake the role of picket supervisor.



The amendment would further remove the requirement to inform the police of the picket supervisor’s name and contact details, and of where the picketing will take place. I have already referred to the importance of the police’s understanding of whom to contact, particularly if a problem arises on the picket line. Knowing where the picketing will take place will enable the police to attend quickly, should they need to. The shadow Minister made a good, sensible argument about the strain on police resources; indeed, that was reflected in the evidence given to the Committee. I would simply say that the adherence to these very measured and sensible provisions—about having a picket supervisor who knows what the code of picketing says and who has told the police his mobile phone number and where the picket is going to be—is what will minimise the need to call on police resources. If everything is there quickly and easily in the event that a problem arises, the need for the police to supervise, unless there is a problem, is removed.

[Julie Elliott (Sunderland Central) (Lab)]

Would the Minister expect that information to be given to the police in writing, or by electronic means?

[Nick Boles]

That is a very good question. I imagine that the picket supervisor could communicate with the police in whatever form they wanted. I promise to check that point.

Amendment 104 further removes from the clause the requirement for the union to issue the picket supervisor with a letter of authorisation. It also removes the requirement to show that to a constable or any other person who reasonably asks for it. As I have already mentioned, the letter of authorisation relates to the picket so that it is clear that the picket is lawful. The removal of the letter of authorisation would create uncertainty about whether the picket has been authorised by the union. It would also make it more difficult for the union to show that it has complied with the requirement to appoint a supervisor.

The other substance of the amendment proposes to insert new requirements for the constable in relation to any entitlement to see the letter of authorisation. It sets out that the constable would need to provide their personal details, to which police station they are attached, the reasons to see the letter of authorisation and a written record whether the request had been complied with.

Our intention in clause 9 is that this letter authorises the picket, not the picket supervisor. Therefore, it does not need to contain the name and personal details of the picket supervisor. I would like to reflect again on whether that is articulated as clearly as it could be in the Bill.

The police will already have been informed of the name and contact of the picket supervisor so that they are able to respond quickly should a problem occur. All uniformed police officers carry a warrant card as proof of identification and authority. Those generally include a photograph of the holder as well as the holder’s name, rank, warrant number and a holographic emblem to mark authenticity. A requirement for a written record would appear an additional and unnecessary burden when considering this in relation to a letter of authorisation for a picket.

I am aware that the entitlement to see the letter of authorisation by any person who reasonably requests it has caused some concern. I am grateful for the insights provided by hon. Members and will reflect on those further. I therefore ask the hon. Member for Glasgow South West to withdraw the amendment.

[Chris Stephens]

I agree with the shadow Minister that winter is coming. The Minister has not addressed issues relating to blacklisting and, like the hon. Member for Cardiff Central, I am very concerned about the approach that occurs in guidance and, whether we agree or not that it is interlocked, it will have other consequences for legal proceedings. I do not believe the Minister has addressed the concerns and consequences of that and feel obliged to press for a Division.

Question put, that the amendment be made.

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[Stephen Doughty]

I detect a chink of summer in the Minister’s comments, particularly on what he said about reflection and the interesting revelation that people could communicate with the police electronically.

[Nick Boles]

I just thought that the hon. Member for Sunderland Central asked such a cunning question. I am sure she will be delighted to have it confirmed that the picket supervisor can inform the police by any means of written communication.

[Stephen Doughty]

That is indeed revealing. I hope that sets a precedent for discussions we might have in due course. [Interruption.] Let us see where we go. Perhaps we can persuade the Minister. We will need more clever questions.

[Stephen Doughty]

Perhaps the Minister would like to confirm that in his remarks. Before we discuss the amendments, I want to reiterate the point at the heart of the debate. As the Minister says, we already have the picketing code, which many people comply with, and we have been clear that many of the potential offences that the Minister seeks to avoid are already covered in law. My fear is—I genuinely ask the Minister to reflect on this—that whatever the Government’s intentions are, the reality is that others will seek to exploit parts of the Bill as drafted to make the rights of others illusory.

We heard from Liberty in the oral evidence sessions that many aspects could be used by others to try to bring injunctions and proceedings. Ultimately—this goes back to our debate on the gagging law—many are frightened about potential non-compliance with the law. The RCM made that clear:

“We believe the intention is to frighten and confuse midwives from exercising their right to protest for fear that they will make a simple mistake and be prosecuted.”

That is the fear of many people who are not experts in trade union law and the existing legal provisions. Let us remember that the overwhelming majority of those who engage in such activities would never contemplate the intimidation or other unsavoury activities that the Minister outlined.

Amendment 27 would remove the requirement that the picketing supervisor must be a person familiar with the provisions of the code of practice on picketing. It is not that I hope that people are not reading and understanding it, but I believe that that requirement is excessive and creates a risk that unions could again be exposed to legal challenges because a picket supervisor could not answer a random question about the code of practice even though the picket activities they were supervising were peaceful and otherwise lawful. I would appreciate clarity from the Minister about the intention behind this measure, because it could be misused by those who would seek to make rights illusory.

Amendment 30 is on the letter of authorisation. It would remove the requirement on picket supervisors to show their letter of authorisation to constables who ask to see it. We have discussed that already, but I have concerns that the interaction between a police officer—a “constable” as defined in the Bill—and an individual could form the basis of a future legal challenge by the employer and that that could again put the police in an invidious position. The hon. Member for Glasgow South West covered the circumstances in which others could demand to see the letter. Fascist organisations or others could seek to use potential loopholes in the Bill to cause frustration to those going about exercising their rights reasonably.

Amendments 31 and 32 are important. Proposed new section 220A(7) of the Trade Union and Labour Relations (Consolidation) Act 1992 will place a duty on picket supervisors to be either constantly present at a picket or able to attend at short notice. The Opposition believe that that would place an onerous responsibility on picket organisers, especially when pickets are scheduled to take place overnight as well as during the day, so the amendments would remove that requirement. Here again there is potential for a really unreasonable requirement to be placed on those who otherwise seek very much to comply with the spirit and intent of the existing code of practice and this law if it is to be enacted. I would appreciate the Minister’s comments on those points.

[Nick Boles]

I am grateful that the hon. Gentleman has given me the opportunity to explain how the code of practice works and why we think it is appropriate to ask for familiarity with it. The code has been in place since 1992. It sets out the principles and the legal requirements that underpin picketing, and it sets out guidance that, if followed, will mean that the picketing will be considered peaceful. To my knowledge, these provisions have not given rise to concern for the past 20 years or so.

The Bill requires the picketing supervisor to be familiar with the code. In the Government’s view, familiarity with the code represents sensible and practical preparation for someone about to undertake the role of picket supervisor. However, familiarity does not mean an ability to quote verbatim every single provision of the code; it means a broad familiarity with the provisions of the code and the reasonable requirements it places. The code itself is not onerous. It has not given unions cause for concern, so we believe that a supervisor’s familiarity with it is helpful and supportive of the shared aim of peaceful picketing.

Let me move on to amendment 30. As I said, clause 9 introduces the statutory requirement to appoint a picket supervisor and to issue that person with a letter of authorisation so it is clear that the picket is lawful. Removing that requirement, as proposed by the hon. Gentleman, would make it more difficult for unions to show that they have complied with the requirement to appoint a supervisor. It may also cause confusion on the picket line about whether the picket supervisor has indeed been appointed and whether the picket is legal.

We are aware of the sensitivities around union membership. I would like to underline the fact that the entitlement for any other person to be shown the letter is currently restricted to those with reasonable cause, and in my view that arguably means the employer at whose workplace the picketing will take place. It would be very difficult for a random passer-by to show reasonable entitlement. However, I am grateful for the hon. Gentleman’s explanation. I will reflect on the concerns raised, and I will return to this issue on Report.

[Ian Mearns]

How would a picketing supervisor in possession of such a letter know who is a random passer-by and who is a legitimate representative of the employer, unless they are carrying some sort of letter to say they are so?

[Nick Boles]

As I have indicated, we will return to this issue on Report after reflecting on it. That is a very helpful contribution, and I will ensure our reflections take it into account.

Amendment 31 is on the requirement for the picket supervisor to be present or able to attend at short notice, and to be readily contactable. The hon. Member for Cardiff South and Penarth proposes a new text that supplies a reasonable test of those requirements and removes the phrase

“While the picketing is taking place”.

Let me explain how the provision should work in practice. The current legal text balances a clear statutory requirement with allowing sufficient flexibility for it to work in the real world. It does that by enabling the picket supervisor to be absent, provided that he or she is able to attend at short notice, which is why it is linked to the requirement for the picket supervisor to be readily contactable by the union or the police. The effect of these measures is that the picket supervisor does not need to be present at all times. In fact, they positively enable the picket supervisor to be absent, provided they are able to attend at short notice if necessary.

I am concerned that the hon. Gentleman’s amendment would result in the requirement becoming legally less clear. A lack of legal clarity will likely result in more litigation and higher legal costs, most probably for unions.

[Stephen Doughty]

I appreciate the Minister’s very helpful clarification. For the record, can he state what he believes short notice would mean, in general terms? Would the picket supervisors have to turn up within 15 minutes, or would they have a couple of hours for travel if, for example, they had gone home for the night and had to come back? We need to recognise the practicalities.

[Nick Boles]

What I might do is move on to amendment 32 and come back to that point after I have taken a bit of in-flight advice.

Amendment 32 would entirely remove the requirement for the picket supervisor to be present or readily contactable. It is important that one or other of those positions is the case, because the picket supervisor will act as the main point of contact to ensure picketing remains peaceful. The Government want to tackle the intimidation of non-striking workers, and the appointment of a picket supervisor to oversee picketing is an entirely appropriate and proportionate way of ensuring that unacceptable behaviour on a picket line does not occur. It will ensure consistency in the way picketing is conducted, and ensure that picketing remains peaceful, as currently required by law. Removal of the requirement for the picket supervisor’s presence or their ability to be contacted to return would render the requirement for union supervision ineffective.

I move on to amendment 33, while I still wait for inflight advice.

[Ian Mearns]

Can I be of assistance to the Minister?

[Nick Boles]

I am always happy to take assistance from the hon. Gentleman. I know that he means it with a generous heart.

[Ian Mearns]

May I take the Minister back to the information he gave the shadow Minister about using “any means” to communicate the intention to picket to the appropriate authorities? I can imagine the scenario—and the Minister might want to think about ruling some of this out—where an ingenious trade unionist or picket supervisor uses semaphore, Morse code by means of an Aldis lamp, invisible ink on best vellum, Native American smoke signals, or even, as I have witnessed on a Remploy picket line of GMB workers, British Sign Language. It may well be that “any means” is not appropriate; it will have to be a means that the appropriate authority can understand.

[Nick Boles]

I thank the hon. Gentleman. I think I did make it clear that it needs to be any means in writing, though his last example provides an interesting question. Nevertheless, the position would be any means in writing.

I was waiting for in-flight advice and I fear that the hon. Gentleman is not going to be any more satisfied than I am by the advice that I have received, which suggests that short notice means that the picket supervisor needs to be there promptly to deal with issues should they arise. The real point is whether we are opening up to greater legal challenge than is currently the case. Therefore, the question is, does “short” provide more or less clarity than “reasonable”? My argument is that “reasonable” is more capable of multiple interpretations, and therefore debate, challenge and legal costs, than “short”, which does have a common meaning in the English language that we all understand. Of course, it will inevitably depend on the circumstances and the particular situation of the picket. If it is held in the middle of the night, “short” would probably be interpreted differently from how it would be if held during working hours. I think it is better to stick with “short” rather than move to “reasonable”.

Finally, because I am worried that I am taking too long, Sir Alan, I move on to amendment 33. Clause 9 requires the picket supervisor to be easily identifiable as such to the pickets, the employer and other workers. It presents clear, tangible confirmation that the union has complied with the picketing supervision requirements and provides a clear point of contact on the picket line. Therefore, it creates confidence that there is someone who is familiar with the code and who supervises the picket so that it is conducted peacefully.

Wearing a badge or another identifiable item of clothing will balance our objective to ensure that picketing can take place in accordance with the right to assemble, while providing confidence for non-striking workers to be able to go into work. That balance is what is important here.

I point out that the code suggests that all people on the picket should have some kind of badge or identifiable piece of clothing. That is not something we have had objections to over the years, but we feel it would not be reasonable to require that in statute of everyone. Given the picket supervisor’s particular function and responsibilities, it seems reasonable to require that. They do not have wear armbands. A badge, a baseball cap—I am sure we can think of many ways for people to identify themselves as picket supervisors.

[Stephen Doughty]

Before the Minister concludes, I hope he understands the serious concerns around this and the potential implications, and why it has been a matter of contention, given the historical persecution of trade unionists. It would be helpful in relation to all these amendments if he was clear. He has indicated this broadly in his remarks, but will he be clear that nothing that the Government propose to do here is intended to serve as a litigator’s charter for people who would not reasonably be required to be a party to any of these disputes? I hope he is reflective and considers some of the matters, but would he please be crystal clear for the record, because it will be important for how the Government’s intent is considered in future?

[Nick Boles]

I am happy to offer the hon. Gentleman that reassurance. We are very pleased that most unions in most cases are happy to abide by the provisions of the picketing code. We simply want to make it clear that the code should be abided by in those few local situations, of which the unions perhaps do not have knowledge, where it is not. We certainly do not want to be opening up greater opportunity to challenge legitimate strikes or industrial action that have been arrived at through legitimate ballots. On that basis, I ask the hon. Gentleman to withdraw the amendment.

[Stephen Doughty]

I appreciate the Minister’s comments and am glad that he appears to be in a reflective mood. I am content to withdraw the amendment, but I will do so on the basis that the Minister and the Department will consider the matter carefully. If additional clarification can be provided on the face of the Bill, on Report or elsewhere, that would be welcome. Otherwise, Opposition Members or our colleagues in the other place may want to return to the matter. The legislation needs to be crystal clear. This part of the Bill has some serious implications, and they must be clear in law. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question put, That the clause stand part of the Bill.