Trade Union Bill (Programme) (No. 2)

Nick Boles Excerpts

Tuesday 10th November 2015 Commons Chamber

[The Minister for Skills (Nick Boles)]

Just briefly, because I want us to use this time for the purpose for which it was intended, let me say that the hon. Member for Cardiff West (Kevin Brennan) knows full well that, when it comes to his own contributions, what matters is quality, not quantity. He did not have the advantage of joining us on the Public Bill Committee, but he was no doubt informed by the Opposition representative on the Committee that it finished early. We did not use the full amount of time allocated under the programme order in Committee. I believe that the Bill has received proper scrutiny.

Trade Union Bill

Nick Boles Excerpts

Tuesday 10th November 2015 Commons Chamber

[Mr Anderson]

I am proud to declare my interests in relation to the trade union movement. I am glad that the hon. Member for Huntingdon (Mr Djanogly) has returned to his place, because he talked about intimidation in workplace ballots. I refer him to the last two workplace ballots run by the National Union of Mineworkers in 1981 and 1983, in very tense times. There was an 80% turnout in both ballots on taking national strike action to fight pit closures. In both ballots, more than two thirds of the members said no. Where was the proof of intimidation there?

The hon. Gentleman also claimed that my party wants to go back to workplace ballots only, but that is completely untrue. We do not want these changes, but if we have to have them, let us be serious about them. We have tabled amendments to keep workplace ballots, but we have also said, “Let’s have electronic voting.”

It is clear that this Bill is about bias. It is about blocking people like me from having the opportunity to go through the trade union movement and get the skill, the confidence, the training and the support from a trade union to become part of the political movement that the trade unions gave birth to, so that I can come in here and challenge people such as the hon. Gentleman who want to destroy the things that I believe in and he hates. That is what this Bill is about—nothing more, nothing less.

Who wants this Bill? When I was canvassing in Blaydon during the election, not one person said to me, “We want to tighten trade union legislation.” More pertinently, before the debate today, not one person asked me to support the Bill. But 431 people have written to me directly to ask me to oppose it. The employers do not want it, the workers do not want it and it is clear that the public do not want it. If this Bill is forced through, we will see more industrial unrest, as the hon. Member for Edinburgh East (Tommy Sheppard) said. Disputes will not end, victimisation in the workplace will not end, health and safety abuses at work will not end, discrimination will not end and exploitation will not end.

Frustrated workers will not stand back, no matter what the legislation says. We will end up with workers being forced to break rotten laws. If that happens, I would say to members of my party and other MPs of conscience that we should stand four-square behind those workers. This Bill is nothing more than an attempt to undermine democracy. The Conservatives are even abusing the memories of Winston Churchill and Margaret Thatcher—and I cannot believe I am saying that.

[The Minister for Skills (Nick Boles)]

We have heard fierce argument in Committee and today from those who would seek to exclude some areas of Great Britain from the reach of the Bill, or who would seek to allow coverage in those areas only with the consent of the bodies to which certain other responsibilities have been devolved. Nothing in the Bill need cut across the positive relationships that we have heard about between unions and Government in Scotland and Wales.

There is nothing to stop union representatives using paid facility time to fulfil their union duties to help represent working people. All the Bill does in relation to facility time is introduce measures that have already been introduced in the civil service, and union duties are still admirably and adequately fulfilled in the civil service.

It is important for the productivity and prosperity of Great Britain as a whole that arrangements pertaining to employment matters apply consistently across the whole country. Employers do not see boundaries when engaging staff. Many employers have employees in all three countries, in London and in various English authorities. Having different employment laws applying would produce a complex situation, involving much confusion and cost for business.

[Jonathan Edwards]

As the Minister will be aware, this Bill does not apply to Northern Ireland because these issues are devolved. Is he aware of the comments by Dr Stephen Farry, the Minister in Northern Ireland? He said:

“I do not believe that there is a case for winding back the clock in terms of trade union reform or that such regression would also be supported by the Executive and the Assembly.”

Is it seriously a surprise to the Minister that that Scottish Parliament and the National Assembly for Wales agree with those points?

[Nick Boles]

I am sorry we were not able to hear from the hon. Gentleman directly, because I am sure he has much to contribute. He will be aware there is a particular historical record in Northern Ireland, which is why, quite a long time ago, employment law was devolved to Northern Ireland. That historical record, I am glad to say, does not apply elsewhere in Great Britain. This is why employment and industrial relations law are clearly reserved matters under the Scottish and Welsh devolution settlements. It is entirely in order for the Government to propose that the Bill applies to the whole of Great Britain and does not require the consent of the devolved Governments or any local authorities.

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[Christian Matheson]

Several private bus companies in Chester have recently withdrawn rural services, which is inconveniencing commuters in Chester. Why are the Government not legislating to stop them doing that?

[Nick Boles]

The hon. Gentleman will be aware that those people have alternative services, and where they do have alternatives we are not proposing to introduce the higher mandate. We are producing the higher mandate when a service is effectively a monopoly in the life of consumers, and they have no other possibility they can arrange at short notice.

On the certification officer, it is entirely reasonable for a union regulator to mirror the geographical extent of unions themselves. It would be very disruptive to have a single union subject to different regulatory arrangements in Scotland than in the rest of Great Britain—or, worse, for a union to be subject to no regulation at all in Scotland or Wales, but subject in parts of England. It is worth noting that the 1992 Act already provides, under section 254, that the certification officer may appoint an assistant certification officer for Scotland, and may delegate to that assistant certification officer such functions as he thinks appropriate in relation to unions based in Scotland.

[Chris Stephens]

The Minister talks about unions being organised on a geographical basis. Does that mean that the Educational Institute of Scotland will be exempt from the Bill?

[Nick Boles]

The hon. Gentleman, with whom I have had very lively and enjoyable debates in Committee, knows that the provisions in the Bill apply under the devolution settlement throughout Great Britain and to all institutions, including those active only within Scotland.

In conclusion on these amendments, Parliament has put in place proper procedures for considering what should be reserved to Westminster and what should be devolved to other Administrations. Debates took place in this Chamber only yesterday on what should be devolved and what should be reserved to Westminster. Employment and industrial relations law is reserved.

Turning to other balloting methods proposed in amendments tabled by Opposition parties, it is vital that union members, employers and the public have the utmost confidence in ballot processes, as my hon. Friend the Member for Huntingdon (Mr Djanogly) argued so clearly. Without that, the integrity of the whole system would be called into question; members would not use it, unions would not rely on it, and employers and the public would not trust it. That is not in anyone’s interests.

As I said in Committee, and as the Prime Minister has said, we have no objections in principle to the introduction of e-balloting. I expect that in some time—maybe in five or 10 years—the practical objections I am about to outline will have been overcome. It is simply a matter of time and human ingenuity. However, there are practical objections, and the Opposition cannot just dismiss them. The onus is on them, in proposing new forms of voting, to show that the objections can be overcome.

The Speaker’s Commission on Digital Democracy received evidence from the Open Rights Group, and I quoted that evidence on Second Reading. This February, Jim Killock, its executive director, gave an interview to The Guardian, in which he said of online balloting:

“This is a very hard problem to solve and so far nobody has managed it. Accountability in most software systems means a clear audit trail of who did what, which of course would violate the basic question of secrecy…You have the complexity of making sure that internet systems are secure, that the voting equipment can be trusted despite being attached to the internet, and that every voter’s machine is not being tampered with. Given the vast numbers of machines that are infected by criminally controlled malware and the temptation for someone to interfere in an election, internet voting is a bad idea.”

I am not aware that the gentleman quoted is a Conservative or that he supports the Government. [Interruption.] Instead of shouting at me, Opposition Members should reflect on the objections raised and work with us to try to overcome them. We are absolutely open to discussing these practical objections, and to working with the Opposition parties and anyone else in society to overcome them.

[Richard Fuller]

My hon. Friend has spoken about problems with processes, but we are talking about some of the most venerable institutions in our country: trade unions. At this early stage of the Parliament, with five years of important discussions to have with trade unions across the country on wages, terms and conditions, productivity and efficiencies, does he want to say to trade union leaders that the Government do not trust them to run a ballot?

[Nick Boles]

I want to say to trade union leaders that when they can overcome the objections listed not by me, but by experts from groups such as the Open Rights Group, the Government will be happy to work with them to implement new forms of balloting. Until then, however, we remain to be persuaded.

My hon. Friend the Member for Huntingdon is right that there is no requirement for primary legislation to introduce new forms of balloting. It can be done under powers in section 54 of the Employment Relations Act 2004. On that basis, I urge the House to reject the amendments.

[Chris Stephens]

I thank Members who have contributed to this debate. I have been struck by three things. I say gently to the Minister and the Conservatives—

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[Mr Speaker]

To wind up the debate I call the Minister, Mr Nicholas Edward Coleridge Boles.

[Nick Boles]

Thank you, Mr Speaker. I rise to support Government amendments 2, 3 and 4, and to resist Opposition amendments and new clauses.

The Government recognise picketing as a lawful activity when it is conducted in a peaceful way. We believe that when some people exercise their right to freedom of expression, it should not impact on others’ right to disagree with that view. The main requirement set out in the Bill is a statutory duty for the union to supervise picketing, in particular by appointing a picket supervisor. The picket supervisor must either attend the picket line or be readily contactable by the union and the police, and be able to attend at short notice to ensure that picketing is lawful. As you may recall, Mr Speaker, none of the measures in clause 9 is new. They reflect key aspects of the picketing code, which has been in existence since 1992; most unions have been very happy to comply with it in almost all cases. We have had no suggestions for its amendment from the Opposition, including in their 13 years in government.

Government amendment 2 deals with the requirement in clause 9 for the union to issue a letter of authorisation. I have listened very carefully to the different views expressed on this requirement. It is clear that there has been some confusion about the purpose of the letter of authorisation, its content with regard to the picket supervisor, and the entitlement to be shown it. I would like to state for the record that there was never any intention of having the personal details of the picket supervisor set out in the letter of authorisation, but given that there continues to be uncertainty about how the requirement will work in practice, we are clarifying that the purpose of the letter is to record the union’s approval of a picket related to a particular dispute.

I took on board the concerns expressed about the entitlement to see the letter, and said that I would return to this matter on Report. I assure the House that I take matters relating to data protection very seriously, and do not want to create any room for misconceived entitlement or concern about misuse of personal information. That is why we are making it clear that the entitlement to see the letter of authorisation is restricted to the employer at whose workplace picketing is taking place, or the employer’s agent. To remove any scope for the misunderstanding that the picket supervisor is required to supply their name during picketing, we have removed the reference to the constable from the clause. The police will already have been informed of the picket supervisor’s contact details following the picket supervisor’s appointment.

We have built in important flexibility; for example, the requirement should be to show the letter as soon as is reasonably practicable, to enable the picket supervisor to be at another picket line related to the trade dispute. The measures also help the employer by allowing them to ask their human resources manager or solicitor to act on their behalf. I comment the amendment to the House.

On agency workers, I simply say that new clause 1 seeks to pre-empt the Government’s response to the consultation on agency workers. The Government consultation closed in September; we are analysing responses. We will publish a response in due course, and I resist any amendment that seeks to pre-empt it.

On political funding, the Conservative manifesto on which we stood for election in May said that a future Conservative Government would ensure that trade unions use a transparent opt-in process for union subscriptions. The public rightly expect us to deliver on these promises. It would be wrong, given our mandate, for us to engage in discussions behind closed doors and agree some kind of compromise that was then presented to the public and Parliament as a done deal. Many Opposition Members believe that this change will see political funding fall for certain political parties. That betrays an extraordinary lack of self-confidence in their ability to persuade union members of the merits of supporting their party. On that basis, I do not believe the amendment is necessary.

[Mr Ronnie Campbell (Blyth Valley) (Lab)]

Will the Minister do the same with the shareholders of companies that give money to the Tory party?

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[Nick Boles]

I am sorry, Mr Speaker; I will give the hon. Gentleman another go, because I had another message in another ear.

[Mr Campbell]

Will the Minister give that opportunity to shareholders in big companies that give money to the Tory party?

[Nick Boles]

As you will be aware, Mr Speaker, and as I am sure the hon. Gentleman is aware, any donations by public companies have to receive the approval of shareholders and are subject to the same declaration, at the exact same level, as we are proposing for trade unions, so when it comes to transparency and voting, things are equally clear.

I want to turn at some length to my hon. Friend the Member for Stafford (Jeremy Lefroy) and his arguments in support of his amendment 5. All Members will have heard a sincere and principled man making a sincere and principled argument. I say that not because he was so kind as to quote, rather awkwardly, a speech I made in a moment of delusion, but because I genuinely believe he seeks the best for the British people, British business and trade unions. I correct him on one point of fact, however: while some trade unions compensate employers for check-off arrangements, our understanding is that this relates to only 22% of check-off arrangements in the public sector.

[Melanie Onn (Great Grimsby) (Lab)]

Is the Minister aware that the general secretary of Unison—the largest trade union in the public sector—offered in Committee to reimburse employers for any check-off costs they incur?

[Nick Boles]

I am aware of that, because I was in the Committee, and the general secretary of Unison is an unforgettable man, and no one forgets when he makes them an offer. However, the purpose of the Government’s measure is not suddenly to undermine the representation of unions in the public sector—that is not what has happened in the civil service, where check-off has been removed—but to create a direct relationship between members and their trade unions by enabling them to make an active choice about which union will best represent them. We have heard from other unions that this has enabled them to compete for the membership of some in the civil service, and to form a more direct relationship with their members.

[Jeremy Lefroy]

I fully understand the Minister’s point, but in that case, why not let them choose whether to do this?

[Nick Boles]

I understand my hon. Friend’s argument, but of course the choice would be made by the employer and the union, not the individual members. I have not yet been persuaded by his arguments, and will resist his amendment, if he pushes it, but I hope I can reassure him that we absolutely do not intend the measure to be a way of making life difficult for unions or of reducing their membership. We will double the time trade unions have to transfer members from the existing check-off arrangement to the new direct debit arrangement from six months to one year. That will not satisfy him and those who support his amendment, but I hope that it will at least reassure him that we do not intend this to be a way of making life difficult for unions. If there is anything further we can do on that point, I am happy to have further discussions with him.

On that basis, I hope that my hon. Friend will be persuaded not to press his amendment. We will talk about this more. I hope that I have reassured him that trade unions will have time to form the direct relationship with their members that the Bill seeks to provide.

[Kevin Brennan]

I just wish to confirm that we wish to push amendment 6 to a vote.

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[Nick Boles]

I beg to move, That the Bill be now read the Third time.

I start by thanking all Members who have taken part in our deliberations on this important Bill. We had a robust debate on Second Reading, and a lively and passionate debate continued in Committee. I thank the hon. Member for Cardiff West (Kevin Brennan), who led for the Labour Opposition, and the hon. Member for Glasgow South West (Chris Stephens) who led for the SNP. They kept me on my toes throughout, and I have to admit that on occasion their fancy footwork pushed me uncomfortably close to the ropes. It is only because of the superb support of officials in the Department for Business, Innovation and Skills, the unfailing vigilance of my hon. Friend the Whip, and my PPS, my hon. Friend the Member for Newton Abbot (Anne Marie Morris), and the stalwart resolve of hon. Friends on the Committee that we were able to resist their forensic fusilade.

This Bill seeks to do two things—to modernise the relationship between trade unions and their members, and to redress the balance between the rights of trade unions and the rights of the general public, whose lives are often disrupted by strikes. We have brought it forward as a party that believes in trade unions, that is proud to win the support of many trade union members at elections, and that wants trade unions to carry on doing the excellent work they do to encourage workplace learning and resolve disputes at work.

Madam Deputy Speaker, I am not sure whether you are as assiduous a reader of the ConservativeHome website as I am, but today the leader of the Scottish Conservative party published a superb piece about the importance of trade unions and hailed the launch of the Conservative Trade Unionists group by the Minister without Portfolio, my right hon. Friend the Member for Harlow (Robert Halfon).

The measures in this Bill are rooted in the manifesto, on the basis of which we won a majority of the seats in the House of Commons at the election in May. They are supported by members of the public whose interests as parents, as patients and as commuters we were elected to defend. The measures have secured clear majorities on Second Reading, in Committee and on Report, and I hope they will secure a similarly clear majority on Third Reading.

[Mr David Burrowes (Enfield, Southgate) (Con)]

Is it not important to ensure that the Bill is properly targeted and looks to where there is genuine support for changes, not least in relation to the removal of check-off? May I invite the Minister, as the Bill proceeds to the other place, to reflect on the arguments made by my hon. Friend the Member for Stafford (Jeremy Lefroy) in speaking to amendment 5, with the recognition that there should be an agreement to compensate taxpayers for the financial burden, and the proposal for an agreement? It is important that we properly reflect on these arguments to ensure that we have this targeted approach to dealing with issues of trade unionism in the right way.

[Nick Boles]

I have already told my hon. Friend that I am happy to carry on talking to him about this as the Bill proceeds through the other place, and if he would like to join these discussions, I would be absolutely delighted.

[Mark Durkan (Foyle) (SDLP)]

Will the Conservative Trade Unionists group, which the Minister mentioned, be able to join online, or, given the dodginess of the internet, will they have to wait five or 10 years for that?

[Nick Boles]

I am tempted to say that they will have to buy a small donkey and write it on the side, but no, of course they will be able to join through the usual routes.

I look forward to engaging with Members of the upper House, alongside my noble Friend Baroness Neville-Rolfe, and we will listen carefully to any concerns they may have. I hope that I have demonstrated through amendments to the provisions on the picketing supervisor and the letter of authorisation that the Government are willing to hear persuasive arguments and to respond. In turn, I trust that noble Lords and Baronesses will respect the clearly expressed will of the British people, which is established not by retweets or by protests in Parliament Square but through the votes of their elected representatives sitting here in the House of Commons.

Oral Answers to Questions

Nick Boles Excerpts

Tuesday 10th November 2015 Commons Chamber

[Matt Warman (Boston and Skegness) (Con)]

9. What steps he is taking to prevent businesses exploiting migrant workers.

[The Minister for Skills (Nick Boles)]

We are creating a director of labour market enforcement. This will strengthen our ability to find and stop exploitative employers, such as the 41 businesses in my hon. Friend’s constituency who have had their gangmasters’ licences refused or revoked.

[Matt Warman]

As my hon. Friend knows, Lincolnshire produces some of the finest food in the country, but some of its workers are affected by the issues under discussion. Does he agree that it should be as much down to supermarkets and consumers to make sure that everyone knows that the food we eat is produced in humane conditions?

[Nick Boles]

I absolutely agree with my hon. Friend. It is very important that supermarkets and other traders are as transparent as possible about the work they have done to ensure that nowhere in their supply chain is there any kind of slavery or other kind of labour exploitation. The Modern Slavery Act 2015 specifically requires them to make a statement of that kind.

[Tim Loughton (East Worthing and Shoreham) (Con)]

10. What assessment he has made of the adequacy of further education provision and funding in Sussex.

[The Minister for Skills (Nick Boles)]

An area review—the Sussex coast review of post-16 education and training—is taking place and it will recommend high-quality, sustainable and financially viable further education and sixth-form colleges through a reformed structure.

[Tim Loughton]

Two FE colleges in my constituency—Worthing college and Northbrook college—are part of that review. They are good and improving colleges, providing valuable apprenticeships, training and education. They have already taken large cuts—there is much uneconomic provision—so can the Minister assure me that the area reviews are not just a cover for further, unrealistic cuts that will threaten their viability altogether? Why are sixth forms in schools not included in those reviews?

[Nick Boles]

I am glad to have an opportunity to reassure my hon. Friend. Regional school commissioners are absolutely required to be part of the area reviews. Those in some parts of the country have perhaps been surprised by that requirement, so I am happy to reassert it: they are employed by the Department for Education and are required to be part of those area reviews. The point of area reviews is to have strong, sustainable FE and sixth-form colleges that can take advantage of growing revenue streams such as the funding for apprenticeships.

[Peter Aldous (Waveney) (Con)]

11. What proportion of businesses in England employ an apprentice.

[The Minister for Skills (Nick Boles)]

I am sorry to detain you yet further, Mr Speaker.

Data from the 2014 UK Commission for Employment and Skills employer perspectives survey showed that, in England, about 15% of establishments have offered formal apprenticeships. When we introduce the apprenticeship levy in 2017, we expect that percentage to increase significantly.

[Mr Speaker]

Quite why the Minister supposes that I find it anything other than joyous to sample his mellifluous tones I frankly cannot fathom. I am not being detained by anybody; my duty is to be in the Chamber, and I shall always be here.

[Nick Boles]

I am really delighted that Suffolk authorities and the chamber of commerce have created that service. A number of authorities around the country have created similar things—apprenticeship hubs and the like—and such interventions by local authorities are incredibly worth while. My hon. Friend is absolutely right that, ultimately, we want employers to take control of this: we want employers to develop standards, as the hon. Member for Newcastle upon Tyne Central (Chi Onwurah) mentioned earlier, to control the funding and to ensure that more people get the opportunity of an apprenticeship.

[Rob Marris (Wolverhampton South West) (Lab)]

Can the Minister tell me three specific things that the Government are doing to encourage apprenticeships in construction, where there is a huge shortage?

[Nick Boles]

I am absolutely delighted to be able to tell the hon. Gentleman three specific things. First, we are introducing an apprenticeship levy. I would have thought that he might have taken the time to welcome it, because it will require larger employers to make a substantial investment in apprenticeships. Secondly, we have reformed the Construction Leadership Council under new leadership and charged it with taking a very active role in promoting apprenticeships in the sector. Thirdly, I regularly meet the new, very focused leadership team of the Construction Industry Training Board, and I have charged it with focusing on apprenticeships as the key method of delivering high-quality training and further skills.

[Chris Heaton-Harris (Daventry) (Con)]

12. What steps he is taking to address the shortage of drivers in the road haulage industry.

[The Minister for Skills (Nick Boles)]

Mr Speaker, you can see why I was a little bit nervous about popping up again.

We are working closely with a group of leading sector employers to support the development of a new apprenticeship standard for heavy goods vehicle drivers. The standard will equip apprentices with the driving skills the road haulage industry needs.

[Chris Heaton-Harris]

Could my hon. Friend name five—no, I will not go there.

Will my hon. Friend work with employers in the road haulage industry to try to incentivise driving as a career choice for young people?

[Nick Boles]

Yes, I absolutely will. There is a desperate need for more skilled drivers. It is actually a great opportunity for people who are in relatively low-skilled employment. We had a very interesting discussion in the Social Justice Cabinet Committee recently about this being an opportunity, as a very good kind of first employment, for ex-offenders. A Defence Minister has mentioned that it is a great opportunity for people leaving the forces. We need to do more on all sides in the Government.

[David Simpson (Upper Bann) (DUP)]

What more can the Government do to help haulage companies with the exorbitant fees of £3,500 that are charged to train for HGV licences?

[Nick Boles]

There is a convention, which we have stuck to for very good reasons, that we do not ask the taxpayer to pay for licences to practise a particular profession. We believe that doing so should be directly in the interests of both the employer and the employee who will benefit from having the licence. However, we are encouraging those companies to develop, and they are working on developing, an apprenticeship standard to include the whole of the rest of the training, which will of course receive substantial support from the taxpayer and from the apprenticeship levy.

[Mr Geoffrey Robinson (Coventry North West) (Lab)]

13. When he plans to bring forward proposals to improve access to finance for (a) the smallest businesses and (b) people who are self-employed.

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[Diana Johnson (Kingston upon Hull North) (Lab)]

T2. Wyke sixth-form college in Hull does a vital job for young people in a city that has struggled with educational attainment, and the FE colleges and other post-16 provision in Hull are deemed to be either good or outstanding. Will the Minister guarantee that that vital provision in developing the skills agenda in the city will be protected, and not decimated by the cuts that his Government are likely to propose?

[The Minister for Skills (Nick Boles)]

We all share a sense of the importance of sixth-form and further education colleges to all our communities, and we all rely on and value those institutions. We need them to be stronger, however, and the area reviews are about enabling those institutions to form arrangements with each other that strengthen them for the future. This will be of less relevance for sixth-form colleges, but for further education colleges, the funding going into apprenticeship training is growing fast. Those colleges have a great opportunity to win a lot of that funding for the future.

[Bob Blackman (Harrow East) (Con)]

T4. I wish a happy Diwali to you, Mr Speaker, and to everyone celebrating it. Given Narendra Modi’s visit this week, will my right hon. Friend describe the various trade, educational and bilateral arrangements that will be announced, and say what Narendra Modi is looking forward to seeing during this visit?

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[Nick Boles]

Through our growth deal with the Heart of the South West local enterprise partnership, we have invested £6.5 million in the Hinkley Point training agency. Yeovil college and its partners can bid for that funding to build capacity and deliver skills training for Hinkley Point. The LEP is leading work with partners, including Yeovil college, to develop an action plan to deliver the construction skills that the area will need.

[Alex Cunningham (Stockton North) (Lab)]

T9. The Minister appears to be a little shy about telling us exactly when the compensation scheme for energy-intensive industries such as steel is likely to be introduced, or whether it will be ahead of the original planned date. While she is thinking about that, will she also give thought to other industries, such as chemicals, ceramics, paper and cement, with a view to providing sufficient compensation for them? They face greater competition, uniquely, because of the high cost of additional UK Government energy and climate change electricity taxes.

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[Rishi Sunak (Richmond (Yorks)) (Con)]

T10. I welcome the Government’s ambition for 3 million apprenticeship starts in this Parliament—three times the number under the last Labour Administration. As the numbers rise, will the Minister ensure that those apprenticeships provide the high-quality skills that our young people deserve and our employers demand?

[Nick Boles]

Absolutely. There is no point having 3 million apprenticeships unless they are high quality and add to the skills of the people who take them up. That is why we are introducing new trailblazer standards, developed by employers: apprenticeships have to last at least a year and involve 20% formal off-the-job training. We are also introducing higher-level and degree apprenticeships.

[Valerie Vaz (Walsall South) (Lab)]

I was at Caparo Atlas Fastenings in my constituency talking to the administrators last Friday. I am sure that the whole House will send their condolences to the Paul family. Will the Minister say what specific steps can be taken to preserve those skilled jobs for the future, given that infrastructure projects are coming up in the west midlands?

[Nigel Huddleston (Mid Worcestershire) (Con)]

The issue of switching suppliers is particularly acute in the mobile phone space, where just 6% of users change contracts each year, and many people find it difficult to find the best deals. What plans do the Government have to improve switching and price transparency in the mobile sector?

[Nick Boles]

The Government are determined to encourage more consumers to vote with their feet in key markets such as energy, banking and mobile phones. We are currently conducting a call for evidence on a set of six switching principles that will make the process quicker and easier for consumers. My hon. Friend the Minister for Culture and the Digital Economy—for digital everything—and I will shortly write to the chief executives of mobile telephone companies to encourage them to co-operate fully with those new principles.

[Mr Adrian Bailey (West Bromwich West) (Lab/Co-op)]

The Caparo group, which has its headquarters in my constituency and is currently in administration, provides high-quality steel products to the supply chains for both the motor industry and civil aviation. Those products are difficult to source from elsewhere. What will the Minister do to ensure that those companies survive?

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[John Pugh (Southport) (LD)]

May I ask the Minister why his Department is keeping further education and skills out of the Liverpool city region deal? They are crucial to the Liverpool city region.

[Nick Boles]

I am not directly responsible for city deals, but there are many such deals around the country that have specifically majored on the inclusion of skills—Manchester and elsewhere. I am happy to look into it, but I am sure it was not because we resisted. Frankly, we are very keen for local authorities and local enterprise partnerships to take a bigger role.

[Martin Vickers (Cleethorpes) (Con)]

May I refer the Minister back to his earlier answer regarding the shortage of heavy goods vehicle drivers? Only last Saturday, my surgery was attended by someone who wanted to establish themselves as a trainer for HGV drivers. Will my hon. Friend look again at the support that such people receive, as it could go a long way to more drivers becoming available?

[Nick Boles]

When there is an apprenticeship standard for HGV drivers, the company in my hon. Friend’s constituency will be able to offer training to employers for that apprenticeship, and to secure the funding that the Government will provide through the apprenticeship levy and other public resources.

[Mr David Lammy (Tottenham) (Lab)]

I welcome the decision the Department has made on name-blind applications to university, but the Minister will know that this does little to deal with prejudices of class and race. Postcode, school and being first in the family to go to university are just as important. What progress is being made on contextual data?

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[Amanda Milling (Cannock Chase) (Con)]

Will the Minister join me in congratulating Jack Hammond and Ashley Churchman, two inspiring apprentices who addressed a joint Education and Business, Innovation and Skills Committee seminar last week? Does he agree that apprentices sharing their experiences in this way can demonstrate to businesses the real value of employing apprentices?

[Nick Boles]

I certainly would like to congratulate my hon. Friend’s constituents. As she says, there are no better advocates for apprenticeships than those who have completed them—not a bunch of middle-aged people like us—who can go to their schools and preach the virtues of apprenticeships.

[Stewart Malcolm McDonald (Glasgow South) (SNP)]

In the Scottish Government’s programme earlier this year, the First Minister announced three new innovation centres for Scotland across Europe, one of which will be based here, in the great European capital city of London. How do the Government plan to support that centre, to ensure that Scottish businesses compete on the world stage?

EU Merger Control

Nick Boles Excerpts

Tuesday 3rd November 2015 General Committees

[The Minister for Skills (Nick Boles)]

It is a pleasure to serve under your chairmanship, Mr Hanson, and it is a great pleasure, finally, after six years in Parliament, to have begun to penetrate the mystery that is Parliament’s scrutiny of European legislation. I have never had that privilege before and it feels particularly appropriate to be standing under a huge painting of Alfred inciting the Saxons to prevent the landing of the Danes. I do not know whether that is why the proceedings are held in this room, though there is a picture at the other end that perhaps we had better glide over.

One does not have to be a great enthusiast in general for intervention by the European Union and the European Commission in domestic economic decisions to see the advantages of a EU-wide approach to mergers and acquisitions where they do affect the integrity of the single market. I certainly do not count myself a great enthusiast in general. I nevertheless see this as one of the areas in which the European Union performs a function that is absolutely valuable to British consumers and, indeed, British businesses that want to grow by expanding through acquisition into other European markets. Therefore, the Government very much support the principle of the European Commission having a role in the review of mergers and acquisitions that meet the tests.

This White Paper, as the hon. Member for Luton North succinctly explained, proposes a number of relatively minor modifications to the current regime: a change in how acquisitions of non-controlling minority shareholdings that could harm competition are considered within the EU; a streamlining of case referrals between member states and the Commission to make the process more business-friendly and less time-consuming; a move to exclude certain non-problematic transactions from the scope of the Commission’s merger review, such as joint ventures that set up and operate outside the European Economic Area and have no impact on European markets; and finally, proposals to foster greater coherence and convergence between member states to prevent divergent decision making in parallel merger reviews conducted by competition authorities in several member states.

Like many other respondents to the White Paper, the UK welcomes the overarching principles behind the European Commission’s proposals, many of which will streamline the system and reduce regulatory burdens on businesses and competition authorities—an aim we wholly support. It is right that we should review procedures and, wherever possible, minimise the burdens on businesses and citizens. However, the major proposal in the White Paper is to extend the scope of EU merger regulation to include the acquisition of non-controlling minority holdings. We have concluded that, in its current approach, as set out in the White Paper, the Commission’s proposal for achieving this appears to be over-burdensome and disproportionate.

The White Paper proposes a targeted transparency system, aimed at potentially problematic mergers that involve the acquisition of non-controlling minority shareholdings. The proposal suggests that an acquisition would be considered potentially problematic if the shareholding was in either a direct competitor or business in the same supply chain and was for around 20% of the ownership rights, or if the shareholding was for less than 20% but more than 5% and the acquirer would gain other rights—for example, a seat on the board. Such holdings would require notification.

The Commission’s objective is to ensure adequate control over non-controlling minority holdings and their acquisition, and we understand this aim. Our domestic merger law gives jurisdiction over certain transactions that give rise to material influence over another business and can apply to acquisitions of non-controlling shareholdings. We are aware of a few cases where action has been taken to address the anti-competitive effects that would result from non-controlling shareholdings. By itself, however, this is not a justification for action at EU level. Competition cases involving minority shareholdings are few and far between, as the Commission acknowledges. Its own impact assessment cites only two previous cases. Given the circumstances, the need for action at EU level would need to be carefully considered and justified to ensure that it adds value and is proportionate.

The system set out in the White Paper is rather complex. Considerable information would need to be supplied by the parties to assess whether the merger may give rise to competition concerns. This system would place a burden on businesses that would be disproportionate to the problem it is designed to solve. The standstill period may cause delays or, in fact, deter some acquisitions from occurring at all.

As outlined in our explanatory memorandum to Parliament in July 2014, we were keen to explore the Commission’s approach with interested parties. The feedback we received was clear: business and legal stakeholders considered that the proposals would impose onerous assessment and notification requirements on them and that this would give rise to costs and delay or discourage deals. Indeed, the notification burden would be even more pronounced in the UK, where there is no domestic requirement to give notification of mergers or acquisitions of minority holdings. It is hard to see the justification for such requirements, given the scale of any problems and the lack of any convincing case for action at EU level.

We therefore recommended to the Commission that it should take a more proportionate approach and encourage those member states whose merger regimes do not cover minority holdings to legislate to cover them. Aside from the Commission’s approach to minority shareholdings, we supported the general principles behind the other proposals. Notably, the Commission suggests replacing the rather cumbersome and time-consuming two-step process by which parties may seek referral of a case from member states to the Commission with a single-step process. We believe that this would bring greater efficiency to the system of referrals.

The Commission proposes amendments to remove or limit the EUMR’s application to certain transactions—so-called full function joint ventures, located and operating totally outside the European economic area. Like many other respondents to the White Paper, we unreservedly support those proposals, which will streamline the system and reduce regulatory burdens on businesses and competition authorities.

In conclusion, the Government strongly support the EU competition system, including the merger regime, and welcome some of the Commission’s proposals to improve its operation, but EU action should always be proportionate and matters should be dealt with at EU level only when necessary and at member state or regional and local level when possible. This is an occasion when we need to assert those principles.

[The Chair]

We now have until 3.35 pm for questions to the Minister. Hon. Members’ questions should be brief. It is open to Members, subject to my discretion, to ask supplementary questions.

[Yvonne Fovargue (Makerfield) (Lab)]

I have just one question on the digital issue. Much of the EU merger law is based on turnover. Digital quite often has lower turnover, but a high customer base. Does the Minister feel that that has been taken sufficiently into account in this document?

[Nick Boles]

I am not aware that the White Paper proposals have any specific application to digital industries, but if they do, I will be happy to write to the hon. Lady and the rest of the Committee, or perhaps she would like to explain the issue further. I was not aware of any specific proposal in relation to digital industries on minority shareholdings or these other referral requirements.

[Yvonne Fovargue]

That is the point. There is nothing referring to digital, but there is a lot about company turnover. As I said, digital turnover can be quite low, but the customer base is very high. Does the Minister feel that perhaps there should be something referring to the digital industry, which has a different sort of customer base and turnover?

[Nick Boles]

Certainly, we have not suggested that in our response to the White Paper, and I do not believe that it is a position that we would want actively to promote, but if the hon. Lady wants to make representations to me or to the Government generally on the issue, I will be happy to consider them.

[Mr Jacob Rees-Mogg (North East Somerset) (Con)]

It is a pleasure to serve under your chairmanship, Mr Hanson, for, I think, the first time in one of these European scrutiny Committees, of which I have had much experience over the past six years. My hon. Friend the Minister has missed a great treat in not being able to come to more of them. I want to ask about his letter of 21 July 2015, in which he states:

“If a proposal does emerge from the White Paper, we think Articles 103 and 352 TFEU provide the likely legal base”.

If it is article 352, that requires an Act of Parliament to be brought into effect, as indeed is being debated at the moment, so I wonder whether he can give us an assurance that if the minority shareholder requirements remain, the Government will not give their consent, which will be fatal to the EU’s proposal.

[Nick Boles]

That was a long question, and I am happy to give a short answer: yes, I can give my hon. Friend that assurance.

[Kelvin Hopkins]

I am pleased that the Government seem to be resisting more powers being transferred from our national Parliament to the EU. I think that the Minister made the point that many mergers relate to companies that are not based in the rest of the European Union. It is appropriate that they should be managed at national level, rather than EU level. Does he agree?

[Nick Boles]

Absolutely. Full-blown mergers—acquisitions of the control of other businesses—have to pass clear criteria on turnover both within the EU and within the respective countries to be reviewed at European level rather than the national level. The criteria are reasonably complicated. My hon. Friend will be more familiar with them than probably any of us. I think that they are set at roughly the right level. As a result, the overwhelming majority of mergers and acquisitions that take place are reviewed by our excellent Competition and Markets Authority, which has a very high reputation. It is absolutely appropriate that only a very small number of mergers and acquisitions are reviewed at European level.

[Kelvin Hopkins]

I think that the European Scrutiny Committee, in general and broad terms, would agree with the Government on this. The principle of subsidiarity is much talked about in European Union circles, but the EU seems reluctant actually to indulge in it much. Would the Minister not suggest that the EU should recognise that some things should be dealt with at national level to make subsidiarity more meaningful?

[Nick Boles]

I cannot pretend that everything involved in preparation for the Committee was absolutely gripping, but nevertheless I found myself intrigued by a debate on the vexed question of subsidiarity between, in particular, the noble Lord Boswell and my predecessor and then me—in reality, the officials who drafted my reply. I had the layman’s understanding of subsidiarity, which is shared, I suspect, by most of us and by most of our constituents: “Don’t do it at European level unless you need to; do it at national, regional or local level.” However, I understand from the correspondence that, within a legal framework, the principle of subsidiarity at European level is applied only in certain areas, where it is acknowledged in treaties that the EU does not have sole competence—only then does something become a question of subsidiarity.

To the extent that this power is necessary for the EU to make the internal market function, questions of subsidiarity would apparently not be raised under the legal framework. That is why we have emphasised proportionality. It would be disproportionate for the EU to start interfering in a small number of cases that rarely have a European-wide impact. In a sense, I rest with the layman’s view of subsidiarity as useful—in general, the EU should not interfere unless necessary, and unless doing so will dramatically add value to individual nation states and their citizens—but in this case we are clear that it would not be necessary or proportionate for the EU to do so.

[Kelvin Hopkins]

I have one more question. Is it not right to be extremely wary of any kind of merger? Mergers inevitably lead to more monopolistic powers for companies to exploit markets. If we are serious about competition, we should maintain a sufficient number of competing companies in any industry.

[Nick Boles]

We are probably straying slightly from the subject. In general, I have agreed with everything that the hon. Gentleman has said, but I suspect that there will be a slight note of difference here. There are many fragmented industries in which the merger of two participants would in no way undermine the consumer’s power and might even enable them to become more efficient and productive, thereby lowering costs to the benefit of the consumer. I completely agree with the hon. Gentleman, however, that in cases of relatively concentrated industries—we can all think of many, and they are often where mergers are most frequently proposed—it is important to have a robust regime. I am glad to say that we have such a regime in this country. We should therefore allow most decisions about mergers in the UK to take place under the jurisdiction of the UK authorities.

[Peter Grant (Glenrothes) (SNP)]

For a partial takeover—a minority stakeholding—involving two companies registered in the same member state, I understand the argument that the member state should be able to regulate the proposed purchase of shares. Does the Minister appreciate, though, that although the companies may be registered in one member state their activities might have a significant bearing on other member states? Aer Lingus and Ryanair are good examples. Both companies are registered in one sovereign state, but their activities can impact significantly on passengers and businesses in other member states.

My first question is about a similar merger involving two German or two Italian airlines that would have significant impact on passengers in the UK. Is the Minister satisfied that the Government’s proposals would give adequate protection to passengers in the UK? Secondly, on minority shareholdings, there can be a degree of integration vertically along a supply chain for the best of reasons, but it can be used to move profitability to the company in the group that is least likely to have a tax liability. Is the Minister concerned about that? Is he satisfied that the regulations that the Government propose to support give adequate protection against such mergers being used as a tax dodge, rather than to increase competition in the market?

[Nick Boles]

Those are two excellent questions. On the first, I remind the hon. Gentleman that the Government’s response to the White Paper specifically suggested that the priority should be to ensure that all EU member states should have, as we do already, a domestic regime for the review and, if necessary, control of the acquisition of minority shareholdings. If they did, we could be satisfied that issues relating to the putative purchase of one German airline by another would be covered. Although the hon. Gentleman is of course right to say that consumers in the broader EU might be affected by such a transaction, they are unlikely to be affected more than consumers in the market in which those two companies have their operational bases. I believe that Germany does have a national regime on minority shareholdings, but many other states do not. If such a regime is present, it should be capable of reflecting the interests of consumers from across Europe.

On the second point, the hon. Gentleman is right that tax dodging can be a driving force behind acquisitions, but it is not specifically about competition. Ensuring that the taxes due are received is an important issue of public interest, but it is not for the competition regime, which is about protecting consumers’ interests, to be the adjudicator in such a situation. I am unable to explain the detail to him, but many discussions are taking place at all sorts of levels about the problem of shifting profits around the world. Indeed, the Chancellor has made some fairly robust proposals about how that can be discouraged in the UK.

[Richard Fuller (Bedford) (Con)]

It is a pleasure to see you in the Chair, Mr Hanson. I have never taken part in a European scrutiny process, so this may be a naive question from me. Will the Minister confirm whether the proposals amount to everything in the EU’s 10-year review of merger policy? Is this the output from that review, or is it just the contentious piece? Is the purpose of the 10-year review that this will then lay the groundwork for the next 10 years?

[Nick Boles]

My understanding is that the White Paper reflects the sum total of the proposals that the Commission wanted to make following the review. It is worth acknowledging that there was a loose throwaway line at the end of the White Paper that seemed to suggest that, in the perfect future envisaged in Brussels, the EU would control everything, but the White Paper contained no such specific proposal. We have responded to all the proposals, as I have outlined. This is not in the Commission’s work plan for the current year, so we do not anticipate early action to take any of the proposals forward. There is certainly no indication of the Commission coming forward with other broader, more far-reaching proposals.

[Richard Fuller]

I thank the Minister for that. On the understanding that the proposals are it and that they look forward for the next 10 years and not wanting to drag the Minister too far into hypotheticals, will he confirm that the rules on mergers apply to the single market and not to the eurozone? We are likely to see a substantial change in the eurozone over the next 10 years with much more consolidation and co-ordination of fiscal policies. The concern with the merger policy is the emergence of a North American Free Trade Agreement-type arrangement in which we end up being Canada, but all the decision-making rules on mergers are produced by one set of countries that have much more common fiscal and economic frameworks. Will the Minister comment on this set of policies and the broader set of merger policies from the review in the light of those likely changes over the next 10 years?

--- Later in debate ---

[Nick Boles]

I am going to resist the urge to speculate in an area in which I can claim little expertise. I simply point out to my hon. Friend that this country retains strong laws and, more importantly, strong institutions that will continue to act under the policies and guidance set out by the UK Parliament. I do not anticipate anything that might happen in the eurozone undermining our own regime. The EU regime applies to the single market. As my hon. Friend will be aware, our right hon. Friend the Chancellor is very busy today seeking to secure guarantees that the single market will not be shanghaied by the eurozone for its own purposes and that there will be protections for those of us who are enthusiastic participants in the single market but will never be members of the eurozone. I am sure that that would include any attempt—not that we have any indication that there will be one—to dilute the regime or overburden it for the sake of eurozone members. We would resist such an attempt very strongly, but we have no sense that that is on the agenda.

[Richard Fuller]

My final question relates to trade treaties, particularly the transatlantic trade treaty, which will create a broader market in which there will be free and open competition. What is the likely impact of the application of this measure to a treaty with the United States and other countries? Has the United States been part of the consideration of this measure or of the overall merger policy in the European Union?

[Nick Boles]

I will not even venture to give an answer off the hoof, because that is not a subject considered in the White Paper, but I am happy to write to my hon. Friend and copy in members of the Committee on that question.

Motion made, and Question proposed,

That the Committee takes note of European Union Document No 11976/14, a Commission White Paper: Towards more effective EU merger control, and Addenda 1 to 3; and supports the Government’s approach of questioning the proposal to widen scope of the EU Merger Regime (EUMR) to include acquisitions of non-controlling minority shareholdings, given that the evidence does not suggest it is justified.—(Nick Boles.)

--- Later in debate ---

[Nick Boles]

I thoroughly enjoyed my first ever appearance before a European Committee. I have never before been compared to Apollo, but that was a great consolation on the day after my 50th birthday. I am not sure that it will ever happen again.

I suspect that I am going to be in trouble for having given a clear answer to a clear question, but if I have won the approval of my hon. Friend the Member for North East Somerset, it was definitely worth it. We will write to the hon. Member for Makerfield on the questions she asked about digital businesses. She will be aware that that is one of the areas where the public interest test can apply, but she asked a specific question about measuring a business’s importance by not only its turnover but the number of people who consume its digital product, so we will write to her about that. I commend the motion to the Committee.

[The Chair]

It is good to see you in such fine fettle the day after your 50th birthday. Very impressive.

Question put and agreed to.

Trade Union Bill (Tenth sitting)

Nick Boles Excerpts

Tuesday 27th October 2015 Public Bill Committees

Question proposed, That the clause, as amended, stand part of the Bill.

[The Minister for Skills (Nick Boles)]

I want to clarify a point that was made just before we adjourned this morning. The hon. Member for Cardiff Central asked whether federated employer associations such as the CBI will be covered by the levy, and I said no. Indeed, it was narrowly correct to say that because the CBI will not be caught by the levy, but it may help the Committee if I provide a little more context to my answer.

Federated employer associations would be covered by the levy, provided that they meet the statutory definition in the Trade Union and Labour Relations (Consolidation) Act 1992. The certification officer keeps a list of employer associations that have asked to be listed, as well as a schedule of those that have not applied to be listed but that the certification officer considers meet the statutory definition. The CBI is not listed, so as it stands the levy will not cover an organisation of that type. It will continue to be left to the certification officer to decide who meets the definition in the future. I will be happy to write to the hon. Lady if she would like further clarification on the statutory definitions in the 1992 Act and how they apply in practice.

[Jo Stevens (Cardiff Central) (Lab)]

I am grateful to the Minister. If he could write to me, that would be good.

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

--- Later in debate ---

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

It is a pleasure to serve under your chairmanship for our last sitting, Sir Edward. I appreciate that this may be a technical clause. It brings into effect a schedule that contains many minor and consequential amendments. Will the Minister provide a little detail about those amendments, and whether there is any substantive change to Government policy in the clause?

[Nick Boles]

Nothing would give me greater pleasure.

Clause 18 gives effect to schedule 4, which, as the hon. Gentleman says, provides minor and consequential amendments to existing legislation to take account of the changes to legislation brought in by the Bill. Specifically, the schedule makes amendments to the Trade Union and Labour Relations (Consolidation) Act 1992 concerning the arrangements for the register of members’ names and addresses; minor amendments to accommodate the changes that provide for an opt-in to the political fund, so that where there are references to members not being exempt there is a reference to members contributing; minor changes to the arrangements to ballots, including making clear that spoiled ballot papers are to be included in the count of those voting for the purpose of the 50% threshold; and minor changes to provisions to cross-refer to the additional requirements in the voting paper in clause 4.

The schedule also makes clear, by amendments to the Trade Union and Labour Relations (Northern Ireland) Order 1995, that the Northern Irish legislation will continue to apply to Northern Irish members of unions in Great Britain. It updates the language, so a decision to opt in under the Northern Irish legislation will be treated as a decision to opt in under the new provisions of the 1992 Act.

The schedule also amends the trade union administration aspects of the Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Act 2014, which in turn also amends the Trade Union and Labour Relations (Consolidation) Act 1992.

Finally, there are other minor repeals to other employment legislation for provisions no longer needed as a result of the Bill’s provisions.

[Stephen Doughty]

I thank the Minister for those clarifications. I am sure that, as he suggested, a number of the elements are simply technical, but as several of them relate to facilitating the passage of the rest of the Bill and the gagging Act, which the Minister referred to using its formal name, we do not want to support them.

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

--- Later in debate ---

[Stephen Doughty]

I would not normally seek to speak on the latter clauses of a Bill, but I rise to make a point and to give the Minister one last chance to answer. The Bill’s provisions are clearly extensive, and a number of them are on extraordinarily shaky legal grounds. Will the Minister clarify whether the Government have set aside funds to consider any legal challenges that might arise once the legislation comes into force?

[Nick Boles]

I think I have pretty much answered that question already. We have not made a specific provision for public expenditure. Indeed, we expect public expenditure to be reduced by the introduction of the levy, which will ensure that the costs of the certification officer that currently fall on the taxpayer will fall on those regulated—the employer associations and trade unions.

Question put, That the amendment be made.

--- Later in debate ---

[Nick Boles]

We are huge respecters of the devolution arrangements, which is why we do not propose that the Bill should apply to Northern Ireland, except in a very small measure. The position is clear: such matters are handled differently in Northern Ireland. We are equally respectful of the devolution settlement with Scotland and Wales, which is why all the provisions of the Bill apply to Scotland and Wales. They relate to employment law, which is a reserved matter.

Question put, That the amendment be made.

--- Later in debate ---

[Stephen Doughty]

Yet again, it is unusual for me to speak on such a clause, but it is important that I do because I want to give the Minister a chance to enlighten us as to when we might see some regulations under statutory instrument coming forward under the Bill. He refused to be drawn on this matter earlier in Committee, but the trade union community and many stakeholders in the Bill are hearing rumours circulating—the place is awash with rumours—that various draft regulations might be published in the very near future. Does the Minister plan to introduce draft or formal regulations within the next couple of weeks, the next month, the next six months or the next year? Perhaps he can give us an idea of the ballpark.

[Nick Boles]

I am happy to reassure the hon. Gentleman that we will bring forward draft regulations when they are good and ready.

--- Later in debate ---

Brought up, and read the First time.

[Nick Boles]

I beg to move, That the clause be read a Second time.

[The Chair]

With this, it will be convenient to consider amendment (a) to the new clause, line 43 at end insert—

“(10) The provisions in this section shall only apply with the consent of the Scottish Government, Welsh Government, Northern Ireland Executive, the Mayor of London and local authorities in England in their areas of responsibility.”

[Nick Boles]

I also wish to resist the amendment to the clause tabled on behalf of the Scottish National Party. My right hon. Friend the Minister for the Cabinet Office and Paymaster General announced in August that the Government intended to end the outdated practice of check-off in the public sector. New clause 11 gives effect to that intention. It would prohibit relevant public sector employers in due course from deducting trade union subscriptions from workers’ wages and sending these to the unions concerned.

Check-off is anachronistic. It dates from a time when most workers did not have bank accounts and direct debit payments did not exist. Nowadays all public sector workers have bank accounts, and trade union subscriptions can very easily be paid by direct debit. Trade unions themselves agree that filling in a direct debit form is a simple and straightforward task. Even the PCS union’s own website currently promotes direct debit, saying:

“It’s quick and easy to sign up for direct debit—you can do it online in a couple of minutes. You just need your membership or National Insurance number and bank account number and sort code”.

Direct debits can even be set up on mobile phones. In addition to its convenience, this way of making payments gives employees the freedom to set up the direct debit arrangement with the trade union of their choice, as well as consumer protection under the direct debit guarantee. Such protection was withdrawn for check-off 17 years ago.

In any case, there is just no need for the relationship between a trade union and its members to be intermediated by the members’ employer. Trade unions should have a direct subscription relationship with their members, using direct debit like any other modern member-based organisation. The collection and administration of union subscriptions is no business of the employer. It should be a matter for a union and its members to arrange between themselves.

At a time of fiscal consolidation, taxpayer-funded employers providing the important public services that we all rely on should no longer carry unnecessary burdens. These include the burden of administering check-off on behalf of those trade unions that have not yet modernised their subscription arrangements. This in turn puts employers at risk of an employment tribunal claim if they make a mistake when deducting union dues. Where an employer provides a check-off service, it puts itself under a legal obligation to do so in a particular way under the 1992 Act. An employer that makes a mistake can be taken to an employment tribunal. That should not be at the expense of the taxpayer when it could so easily be avoided by making alternative arrangements to check-off.

The majority of civil service employers have already decided to remove check-off, and trade unions affected by those decisions have been successful in making alternative arrangements for their members to pay their subscriptions by other means. The vast majority of their members have switched to direct debit.

It is important to emphasise that we are not planning to spring this change on public sector employers and trade unions overnight. We recognise that affected unions will need time to implement the change and get their members to switch to direct debit. They have been on notice since we announced the provision in August.

Furthermore, the change will be brought about by affirmative regulations that will build in a reasonable transitional period. That will allow affected unions and their members time to put in place alternative arrangements to check-off, and will be sufficient to ensure that no undue disruption is caused to the unions or their members.

[Stephen Doughty]

It is good to be on to the new clauses. It is intriguing that the Minister was talking about using mobile phones and the ease of doing things online—almost the very arguments that could be used in support of e-balloting and the methods connected to it—but he has chosen to apply those methods in other measures. That emphasises the debate we have been having throughout the Bill.

New clause 11 would prevent all public sector employers from deducting trade union subscriptions via payroll and would mark the end of what is called check-off. I believe that the Government are deliberately targeting trade union finances by making it harder for individuals, including lower paid workers and many women in particular, to get access to trade union representation in the workplace. That is particularly true for dispersed workforces. I was struck by the evidence I received from the Union of Shop, Distributive and Allied Workers, which works in the retail sector, about the many people working in small shops and retail outlets throughout the country who find check-off a convenient way to have their payments taken, without a complicated process. They will struggle because of the new clause.

The move is almost universally opposed, save for the Government and the TaxPayers Alliance, and we all know that the basis of the oral evidence they gave was very flimsy. It is all rather ironic when we consider that the Government’s claim that the proposal will save taxpayers’ money is, in fact, a red herring, given that many trade unions already cover the cost of check-off services. In some cases, the fees generated in the process and charged by Government employers for check-off provision generate a net gain for the public finances. There seems to be no sense at all in the proposals.

In pressing ahead in spite of the critics, the Government have failed to secure any substantial employer support for their proposals, as far as I am aware. Indeed, many employers, including employers in local government and the health sector—as we have heard with respect to the Scottish and Welsh Governments as well—have expressed concern that the removal of check-off arrangements could undermine constructive relations between managers and unions, which are vital to the quality of public services. Is that any wonder, when employers and trade unions were not even consulted properly?

The proposals have been introduced without a proper consultation process, engagement with the unions, or an assessment of the impact on employment relations. The proposals were not included in the Conservative party manifesto, Her Majesty’s Gracious Speech, or the briefing accompanying the speech, although it would have been easy for the Government to do that. The Minister has said that everyone has long been aware of the change and has had time to prepare, but if the Government are so clear about it, why did they not make it clear when they first suggested introducing the Bill? There was no reference to the proposal in any of the BIS consultations or impact assessments that accompanied the publication of the Bill. Instead, the Government announced the plans on 6 August 2015, and published the new clause introducing the ban, which we are discussing now, only a matter of days ago.

That does not strike me as the most transparent, engaging or consultative process. Unfortunately that has been the hallmark of the Bill from start to finish. To date, the Government have failed to publish any evidence justifying the introduction of the ban, or any assessment of the potential impact of the proposal on those who would be affected.

There are also huge implementation issues. Transferring millions of members on to direct debit would create significant organisational challenges for many trade unions, particularly those operating in dispersed work forces. It will therefore be vital, if this goes ahead, that trade unions are provided with ample time to transfer members on to direct debits. We have talked about the potential unwinding of collective agreements and employment contracts in many sectors, but time will also need to be provided for employers and trade unions to renegotiate existing collective agreements, which often include aspects relating to the check-off provision.

I know many are concerned that no timetable for the introduction has been specified in the amendment. The Minister said he wants to allow a reasonable period and I hope that when he gets to his feet he will specify broadly what he has in mind. The explanatory note similarly suggests that a reasonable period will be provided, but that has no legal effect.

--- Later in debate ---

[Jo Stevens]

It is a pleasure to serve under your chairmanship for the final Committee sitting, Sir Edward.

In tabling the new clause on check-off, the Government seem extremely concerned to bring trade unions into the 21st century. For the second time in Committee I am forced to admit that I agree with the Minister—not on the content of the new clause, but on the aim of modernisation. The Government seem to believe that paying union subscriptions online, via a bank account, is an acceptable facet of 21st-century trade unionism, but that secure online balloting is not. We must ask ourselves why.

I had an inkling of that while looking back through a 2011 Conservative Home column—I have very exciting evenings—which, thanks to a quotation from the then Under-Secretary of State for Communities and Local Government, specifically tied the issue of check-off to the collection of a political levy. That makes me wonder whether the motive for the new clause has more to do with that issue. About 3.8 million public sector workers could be affected by the proposed changes, yet there is no groundswell of demand for the changes from anyone other than the Conservative party.

I want to set out a few inconsistencies to highlight how the new clause does not make sense. I have mentioned the Government’s hypocrisy in opposing online balloting, so I begin with the fact that the use of check-off is voluntary. No employer has to offer it. As with facility time, the right should be with the employer to decide whether the practice benefits their workforce or not. In the case of local government and the devolved Governments in Wales and Scotland, the Westminster Government are imposing top-down solutions to problems that do not exist on the ground.

Secondly, this is not about taxpayers’ money. In many instances, as we have heard, trade unions pay for the very small cost of administering check-off. As the Minister has pointed out, this is the 21st century: payroll is automated. As Unison noted it its written evidence to this committee, the former Chief Secretary to the Treasury in the coalition Government wrote to stop attempts to end check-off, saying that,

“Departments should be aware that there is no fiscal case for doing this, as the Unions have offered to pay any costs associated with check-off, which are in any case minimal”.

As the hon. Member for Glasgow South West mentioned, Unison general secretary Dave Prentis gave us evidence on 15 October about check-off arrangements and gave numerous examples of arrangements that Unison has in place where it either pays for the check-off system, or the employer that the union works with makes money out of it. He named Fife Council, East Lancashire hospitals, Bradford City Council, and Derbyshire County Council, to name a few. If cost really were the issue here, surely the appropriate response is to ensure that the costs are met, rather than to entirely abolish the system.

That brings me to how check-off is used by other organisations. From animal welfare to cancer charities, from helping the homeless to children’s organisations, payroll giving is commonplace. Workplace Giving UK says that it is the most efficient way to give to charity—it works with huge charities such as the Stroke Association and Macmillan. The Payroll Giving Centre claims that over 8,000 employers use the system, with over 1 million people donating from their salaries. It is efficient and easily understood, yet while this system of giving seems set to continue and indeed expand for charities, it is being removed for trade union members.

Finally, on transparency and accountability, check-off ensures that members do not continue to pay their subscription after they have left employment. It is a very clear and easy way for a member to pay subscriptions when in employment but not to continue doing so when they leave their job. Taken with other sections of this Bill, this new clause contributes to a new, sprawling and costly bureaucracy that is being put in place with the sole aim of impeding the ability of trade unions to organise politically and industrially. This is all that this is.

We oppose the new clause and the Bill, but if the Minister really wishes to demonstrate that he is serious about modernisation, I urge him to withdraw the new clause and instead bring forward measures to ensure that taxpayers’ money is not spent on check-off, if that really is his concern, and to specify that trade unions pay for the facility themselves, as many already do.

[Nick Boles]

I will start by answering some of the questions raised by Opposition Members. There was a question about the transition period and how long trade unions with check-off arrangements would be given to move people over to direct debits. My right hon. Friend the Minister for the Cabinet Office has suggested that a transition period of six months from commencement of the provisions on check-off would be appropriate.

[Stephen Doughty]

I am interested in that response. Why is a six-month period suggested for transition on check-off but only three months for the transition on political fund opt-ins? What is the justification for that?

[Nick Boles]

Probably it relates to the fact that check-off does not just involve the relationship between the trade union and the individual member, as the political fund does. It also involves the employer, so there are more administrative steps to go through. I am surprised that the hon. Gentleman does not welcome the fact that the period is longer. We could have aligned the two periods of course, but no doubt he would have attacked us for doing that. I do not expect to be thanked for these things, but a little generosity at this stage in consideration of the Bill might be nice.

Secondly, a number of hon. Members have made a big play of the fact that a number of trade unions pay for the check-off arrangement. Indeed, they are right to do so. The difficulty is that research carried out by their favourite organisation, the TaxPayers Alliance, revealed that in fact only 22% of public sector employers charge for check-off, so it is a little rich to claim that public sector organisations are somehow making a nice turn on it. I remember from the evidence sessions that the hon. Member for Cardiff Central suggested that social workers would have to be fired if the check-off arrangement were ended. There are relatively few situations in which public sector organisations are being paid for the administrative task that they fulfil.

[Several hon. Members rose—]

[Nick Boles]

I have clearly stirred a hornets’ nest. I am spoiled for choice. I will start with the hon. Member for Sunderland Central, because we have not heard from her today.

[Julie Elliott]

I have made a couple of interventions. Can the Minister advise from what return the figure of 22% was derived? My understanding is that it is not based on 100%, so it is not an entirely complete figure.

[Nick Boles]

I have no doubt that the hon. Lady quotes surveys, samples and everything else in her contributions to various debates, so she will be aware that it is possible to draw conclusions about the behaviour of organisations without necessarily interviewing every single one of them. Indeed, I believe her own party took a great deal of encouragement from various opinion polls before the election that seemed to offer predictions about voter behaviour.

The TaxPayers Alliance report in 2013 revealed that 972 public sector organisations that it had contacted and from which it received responses deducted membership subscriptions to trade unions in the check-off arrangement. Of those, 213, or 22%, charged the union for the service. Charging arrangements ranged from a proportion of the costs of subscription—between 0.5% and 6%—to a flat charge per employee or a monthly fee charged to the union. I make no claim that every single public sector employer was interviewed, but it is a reasonably large sample, and it would be surprising if the average for the whole were very different.

[Chris Stephens]

Since the Minister published the new clause, how many public sector employers have written to him supporting the removal of check-off? I am curious about it. If some have decided to provide it freely, there does not seem to be a lot of support in the public sector for banning it completely.

[Nick Boles]

Funnily enough, the hon. Gentleman’s question gets to the heart of the difference between the Conservative party and the Scottish National party. We believe that the public sector employers are the taxpayers—the people of Great Britain who work and pay taxes in order to pay for us and for everybody else in the public sector, and for everything that the public sector does. They are the employers, not the board of this NHS trust, that police force or this local authority, which are charged by the taxpayer to discharge their responsibilities and handle taxpayers’ money cautiously and carefully. It is entirely reasonable for us as representatives of the ultimate employers of the public sector—the taxpayers—to represent their interests and insist that they get value for their money, which they are currently not getting through check-off. I will now move to the amendment, unless—

[Tom Blenkinsop]

rose—

[Nick Boles]

I have not heard from the hon. Gentleman, so why not?

[Tom Blenkinsop]

The main point that we are trying to make is that there are managers who run large public sector organisations who have HR competencies and deal with vast amounts of public sector workers: take the NHS, for example, or any hospital trust. They will be very concerned about any breakdown in recognition—the ability to know where their staff are, who represents them and who to talk to on a collective basis. There will be massive chaos if individual consultation is required on every HR matter.

[Nick Boles]

I am the first to defer to the hon. Gentleman on intimate knowledge of the detailed realities of working for trade unions and working in an organisation with high levels of union representation—I do not claim to be able to match him on that—but we have got rid of check-off in the civil service over the last few years. There are many issues at debate in the civil service. I am not going to suggest that everything is sweetness and light there, but it is a bit of a stretch to say that the removal of check-off specifically has caused chaos in the civil service.

[Tom Blenkinsop]

rose—

[Nick Boles]

No, I will just finish. The hon. Gentleman can put his hand down, because I have noted that he wants to intervene. He will be well aware that some civil service unions—I mention no names—have lost members to other unions, not to no union but to other unions, because, now that there is no check-off, other unions that offer a better service, possibly at a lower cost, can get in and win the support of individuals in the civil service, whereas the legacy union was simply relying on individuals being locked in through a check-off system. I would have thought that the modern Labour party, which I know he always feels he is part of, would want to support the introduction of a little competition among unions in offering a consumer service to their members.

[Tom Blenkinsop]

Unfortunately, the Minister displays his ignorance, because inter-union competition has been going on for decades, since the Bridlington agreement. In the interest of the nation, its people, the public sector and its employees, we want proper recognition agreements so that both parties know with whom they are talking. Trying to say that this is about helping trade unions to recruit members is pathetic. That is a completely redundant argument, and it does not represent the interest of the British general public. What we want to know is that, when paramedics bring up industrial issues and health and safety concerns, they will be talking to an HR manager who knows what they are talking about, rather than having to talk to various individuals in a scattergun fashion, thereby putting services at risk.

[Nick Boles]

I feel that I may have touched a nerve, so perhaps I better not press that any further.

I will move on to the amendment tabled by the SNP. The Committee debated similar amendments at length last Tuesday. As I said then, all the provisions in the Bill relate to employment and industrial relations law, which are clearly reserved matters under the devolution settlements for Scotland and Wales. New clause 11 relates to the same reserved matters, so it is entirely in order for the Government to propose that its provisions should also apply to the whole of Great Britain. I see no reason why the Government should seek consent before applying those provisions in particular areas.

In Northern Ireland, on the other hand, employment and industrial relations are transferred matters so, respecting the agreement that was properly reached with Northern Ireland, new clause 11 will not apply there. Certain responsibilities are being devolved to local authorities in England and to the Mayor of London, but none of those responsibilities includes employment and industrial relations law. Amendment (a) seeks to carve out different arrangements for Scotland, Wales, London and English local authorities on matters of employment and industrial relations law, which Parliament has already determined are reserved. I therefore ask hon. Members not to press the amendment.

[Stephen Doughty]

We received clarification on this in the previous similar debate. Proposed new section 116B(3) of the Trade Union and Labour Relations (Consolidation) Act 1992 states that such regulations may potentially apply to bodies that are wholly or partly funded from public funds. We have talked about organisations that receive small grant funding of, say, £10,000 from public sources. Will the Minister clarify the extent to which the new clause will apply to such organisations?

[Nick Boles]

My understanding is that the new clause will not apply, for instance, to a charity that receives a grant from the Government—absolutely not. This is for public sector organisations, but I will happily write to the Committee to confirm that the definition will be similar to the one used for other provisions.

Question put, That the clause be read a Second time.

--- Later in debate ---

[Stephen Doughty]

I support the new clause in the name of the hon. Member for Glasgow South West and to indicate our formal support, we have added our names to it. During the course of the debate on political fund opt-ins and so on, we also made it very clear that if the Bill receives Royal Assent in its current form, it will mark the abrupt end of the long-standing consensus in British politics that the Government should not introduce partisan legislation that would unfairly disadvantage other political parties. We also made reference to what is known as the Churchill convention, as raised by Professor Ewing in oral evidence to the Committee.

We support the new clause that would provide that before the Government introduce the Bill, which would affect trade union political funds, they should make a clear statement about whether it is being introduced with or without the agreement of all political parties represented in the House of Commons and that statement should be published. Certainly, I believe that that is the clear aim and that we should encourage the Government to seek political consensus with other political parties before introducing legislation that interferes with unions’ ability in this respect. The hon. Gentleman has mentioned examples. This is a point of principle. We have not seen this attempted before. The Government can, of course, impose their will—they have the maths—on the Opposition if they wish to do so. We all know that that is the case. The question is whether it is right to do that. We have discussed these issues at length, but this clause will seek to make it clear that the Government will have to be very clear about their intentions in future.

[Nick Boles]

I love the way the Opposition seek to invent conventions whenever it is useful. It is an easy game to play because all that is needed is to find a very great person from the past—hopefully dead so that they cannot be consulted—take something they once said and declare it a convention. It is certainly something that, should I ever find myself in Opposition—God forbid—I will avail myself of.

[Stephen Doughty]

I am sure the Minister will confirm that the noble Lord Hague is not deceased.

[Nick Boles]

Very far from it, and long may he not be.

Our manifesto stated very clearly that a future Conservative Government would ensure that

“trade unions use a transparent opt-in process for union subscriptions”.

We were elected on that basis after a prolonged debate in the country of all the policies in all the different parties’ manifestos. That is exactly what we are doing.

The right and proper place to consider the provisions relating to that manifesto promise is in Committee and on the Floor of the House. In that way, the debate is transparent and democratic, and the electorate can see what is agreed and whether it is indeed what they were promised in the manifesto. Those debates should not happen behind closed doors and be presented to the public as a fait accompli.

We heard from the hon. Member for Glasgow South West and other hon. Members during the Committee’s deliberations about excellent campaigns such as HOPE not hate that receive support from trade unions through their political funds. I think we can all agree that those are very worthy causes that would command the support of all of us. I see no reason why they should not command the support of union members in exercising their opt-in to the political funds. I urge the hon. Gentleman to withdraw his new clause.

[Chris Stephens]

I am not going to press the new clause to a Division, because I think the case should be heard before the whole House, with all political parties present, so I will bring it back on Report. I beg to ask leave to withdraw the motion,

Clause, by leave, withdrawn.



New Clause 10

The Certification Officer

In section 254 of the 1992 Act (The Certification Officer) for subsections (2), (3) and (4) substitute—

“(2) The Certification Officer shall be appointed by the Judicial Appointments Commission, and the person appointed shall have expertise in trade union law.”—(Stephen Doughty.)

Brought up, and read the First time.

Question put, That the clause be read a Second time.

--- Later in debate ---

[Stephen Doughty]

The new clause enjoys the support of the Labour party, and I would be happy to add my name and those of my hon. Friends the Members for Wallasey and for Edinburgh South to it formally. As described by the hon. Member for East Kilbride, Strathaven and Lesmahagow, the new clause would insert into the Bill a ban on the supply of agency workers during industrial action.

The Government are planning to remove the ban through regulations. It seems they have been undertaking a consultation. Regulation 7 of the Conduct of Employment Agencies and Employment Businesses Regulations 2003 prohibits agencies from knowingly supplying agency workers to replace striking workers. The change that we understand the Government are planning to bring forward will enable employers to bring in agency workers with a view to breaking strikes, regardless of the consequences for health and safety, which the hon. Lady has gone through in some detail.

We have heard from many witnesses throughout this Committee, both in the oral evidence sessions and more recently via written evidence. It is also important to look at the evidence that many organisations submitted to the Government’s consultation, much of which has been made available publicly. I will touch on a few parts of that evidence that I think are very pertinent.

In the oral evidence, the Government called a witness from an organisation called 2020 Health to support their Bill, but the witness seemed unable to confirm or was unaware that trade unions are required to provide life and limb cover. The Royal College of Midwives gave evidence. When it took strike action in October 2013, the RCM and its local representatives worked with hospitals to ensure that services were still available to women in need of essential care, such as those in labour. In light of that, many will rightly ask whether the provisions on agency workers are necessary.

Recruiters are wary of using temps and agency workers as strike-breakers. Kate Shoesmith, who is head of policy at the Recruitment and Employment Confederation, which has more than 3,500 corporate members, said:

“We are not convinced that putting agencies and temporary workers into the middle of difficult industrial relations situations is a good idea for agencies, workers or their clients.”

The Chartered Institute of Personnel and Development, which we have commented on many times, represents more than 140,000 members working across the public and private sectors. It warned that the Government’s plans to reform trade union laws are “an outdated response” given the challenges faced today.

Frances O’Grady, the TUC general secretary, spoke of the practical problems with the proposal. She said:

“We have very good relations and agreements with agencies and the federation representing agencies in this country. We have always worked very closely on the fair principles of employers needing flexibility to cover peaks and troughs in production, or staff absences, and doing that on the basis of equal treatment within the framework of the union agreement. This proposal is obviously quite different. We are potentially talking about employers having the right to replace wholesale workers who have democratically voted to go on strike with, potentially, untrained and inexperienced agency workers.”––[Official Report, Trade Union Public Bill Committee, 15 October 2015; c. 148, Q383.]

I also want to refer to the TUC’s response to the Department’s consultation, which said:

“Ciett, the International Confederation of Private Employment Agencies, has issued a Code of Conduct which prohibits the supply of agency workers during strikes…The Memorandum of Understanding between Ciett Corporate Members and Uni Global Union on Temporary Agency Work, which was signed by several UK agencies in 2008, prohibits ‘the replacement of striking workers by temporary agency workers without prejudice to national legislation or practices.’”

The TUC makes clear in its evidence that

“the ban on the supply of agency workers to replace strikers has been in place for more than 30 years and is an established part of UK industrial relations practice.”

We heard some striking examples from the hon. Lady, and I want to emphasise my similar concerns, particularly over transport and railways and so on. The TUC points to how:

“Agency cleaners recruited to work in food factories may not have received the requisite safety training relating to handling chemicals or cleaning products.”

That places the safety of customers, let alone that of the agency workers, at risk. There were also concerns about the potential for tensions to be created around migrant workers and all the issues surrounding that, which we have already discussed at different points.

Most people have a great deal of concern about many of the circumstances we have discussed where agency workers could be brought in. The evidence is pretty damning and the Government should be embarrassed that they are trying to force the measures through, despite the chorus of opposition to them.

As I have argued throughout our consideration of the Bill, any one of the clauses on its own is bad enough, but the cumulative impact is worse still. The Government’s apparent proposals on agency workers, alongside clause 7, imply that the extended notice period is being introduced to give employers additional time to organise agency workers to undermine industrial action, as well as to prepare for the legal challenges that I think will inevitably result from the Bill. We are firmly opposed to the removal of the ban on the supply of agency workers during strikes, which will make it easier for employers to break strikes or undermine their effectiveness.

The Opposition believe that the measures would be bad for safety and for service users. Because they could serve to prolong or worsen industrial action, they would be bad for the general public too. It is certainly not a model for modern industrial relations. If our colleagues choose to press the amendment to a vote, they will enjoy our full and hearty support.

[Nick Boles]

By seeking to enshrine in primary legislation the current ban in regulations on employment businesses supplying temporary workers to cover the duties of striking workers, as well as extend the ban to hiring or engaging such workers through an employment agency, the amendment seeks to pre-empt the outcome of the Government’s response to the consultation on agency workers, the purpose of which was to understand the impact of revoking regulation 7 of the Conduct of Employment Agencies and Employment Businesses Regulations 2003, thus making it lawful to hire agency workers to cover striking workers.

I entirely respect and understand that Opposition Members have many principled objections to the proposal. There will be another opportunity to debate the merits of the proposal after the Government have responded to the consultation, if we decide to proceed with removing the regulations. The removal of the regulations—I might be anticipating the hon. Gentleman’s question—will be done by affirmative resolution, which requires a debate in both Houses of Parliament. I humbly suggest that now is not the time to anticipate the Government’s response to the consultation.

[Stephen Doughty]

Clearly we are attempting to pre-empt in this case, because we have serious concerns. The Minister rightly points out that the Government have not yet responded to the consultation. As we have seen throughout the process, we do not have the Government responses to consultation that one would think we would have had before getting to this stage of the Bill. Can he outline what percentage or number of the responses received to the consultation so far have been in favour of the Government’s intentions, and how many have been implacably opposed, as our new clause is?

[Nick Boles]

The hon. Gentleman does not just want to anticipate the publication of the response to the consultation and the Government’s decision whether to proceed with removing the ban; he wants to anticipate the contents of the response to the consultation by asking what the responses were. I am afraid that he will have to wait until we publish the response. There were numerous responses to the consultation, which closed in September, from a wide range of respondents, including businesses, schools, local authorities, emergency services and trade unions and their members, and we are analysing those responses. We will consider all representations made, and will publish a Government response in due course.

[Chris Stephens]

The Minister is right that we are trying to pre-empt it. Does he not recognise the concern that some of us have? In some places, agency workers have been used during industrial action. The current law is weak in trying to stop that, and we are trying to improve the situation. Does he recognise that?

--- Later in debate ---

[Nick Boles]

I certainly recognise that the Opposition feel strongly about that position, and I have absolutely no doubt that they will return with these or similar clauses, and certainly with similar arguments, should the Government decide to pursue a change in the regulations banning the use of agency workers. However, I do not want to pre-empt the Government’s position, because we have not yet decided how we will respond to the consultation. On that basis, I urge the hon. Gentleman to withdraw the amendment.

[Dr Cameron]

Although I find the Minister extremely eloquent with an appearance of moderation, as I have done throughout, I must say that the SNP find it disingenuous. We wish to put safety, public opinion and the ordinary worker at the fore. I therefore urge the Committee to support the new clause.

--- Later in debate ---

[Stephen Doughty]

On a point of order, I want to take this opportunity, if you will allow me, Sir Edward, to thank a number of people for the conduct of proceedings during this line-by-line scrutiny of the Bill. It has been a very fulsome and forthright debate, but conducted with good humour and respect, which is always important. I thank the Minister for his good humour despite being under significant pressure. He has had a tough gig with this, having been put in this position by some of his more sinister colleagues—as I once described them—not, perhaps, sitting in this Room, but maybe in the dark recesses of the Cabinet Office and elsewhere. He knows who I mean.

More seriously, I am sure that we will come back to many issues on Report that we are not satisfied with the Government’s position on and we will continue to oppose the Bill at every stage. I thank you, Sir Edward, and your fellow Chair, Sir Alan, for excellent chairing and good humour. I thank the Clerks, in particular Glenn McKee and Fergus Reid, who have provided excellent support. It is always a tough job for an Opposition to hold a Government to scrutiny and it is important that we have the support of the apparatus of the House of Commons in doing so. I also thank Hansard and the doorkeepers, especially for the numerous votes when we have forced them to go out and shout about in the corridor.

I thank my colleagues on this side of the Committee. It has been good to work alongside our colleagues from the SNP on many aspects of the Bill. There is much which divides our parties, but there is much that unites us on this issue. I thank, in particular, my hon. Friend the Member for Newport East, who has whipped the Bill, for her support at all times with all the procedure. On that note, high thanks to all and I look forward to joining the debate when we return in the Chamber.

[Nick Boles]

On a further point of order, Sir Edward, I, too, want to thank you for your chairmanship of our proceedings and for enabling us to ensure that we have a full complement on the Government Benches at all stages of the Bill, despite some of our attempts to make it hard for you to achieve that. I also thank the Clerks, the doorkeepers and everybody who has supported us in these deliberations.

I hope it will not blight the career of the hon. Member for Cardiff South and Penarth if I say that he has conducted opposition to the Bill with exemplary precision and persistence. I am very much awed by the superb support of the Rolls-Royce that is the civil service in the Department for Business, Innovation and Skills. The hon. Gentleman has to rely on a little help from trade unions and other interested parties, but mainly on the superb work of the Clerks. He has done an admirable job which has demonstrated the support of the Clerks.

I hope that the entire Committee agrees that we have given the Bill a proper going over and the fact that we are concluding proceedings a little before time—we have until 5 o’clock this evening—shows that a full and proper consideration of all the provisions in the Bill has been achieved.

I, too, thank the hon. Members from the Scottish National party. I particularly enjoyed that way that the hon. Member for East Kilbride, Strathaven and Lesmahagow, in concluding, offered me a bouquet and then slid a blade between my ribs without so much as a heartbeat or a pause for breath. Finally, I thank the Hansard reporters for reporting what I have said accurately—unless I said stupid things, in which case they always seem to improve what I say.

On that basis, I thank Committee members from both sides for their contributions to the debate.

[The Chair]

It is my pleasure to thank you, ladies and gentlemen, on behalf of Sir Alan and myself. We both found the Committee most enjoyable. Obviously feelings run high, but you have all conducted yourself brilliantly: the Minister, the Opposition spokesman, the Opposition Whip, even the Government Whip—[Interruption.] I love teasing him. I love him really; he is a great man. Perhaps he is one of these sinister forces we hear so much about. Seriously though, it has been a good Bill. The fact that we have finished only an hour early shows, as the Minister said, that we have given it a good going over. We have done our job and held the Government to account. All Committee members should be proud of their efforts.

Does anyone want to say anything more?

Trade Union Bill (Ninth sitting)

Nick Boles Excerpts

Tuesday 27th October 2015 Public Bill Committees

[Ian Mearns]

Yes, I was aware of that, but I thank the hon. Lady for bringing it to the Committee’s attention, because it certainly helps to make the point that I am pursuing.

Clearly, there is a vision of trade unions that this Government do not understand, and that vision is shared by many private sector employers. Unfortunately, this Government see trade unions as the enemy within. They still hark back to the miners’ strike of 1984-85 and to the 1970s, when, we all accept, industrial relations in this country could have been a lot better. However, we are not in the 1970s; it is 2015, and the landscape of industrial relations is very different.

I have been a trade unionist all my adult life. On my second day of employment with British Gas I asked the personnel department how I could see a union official to sign up for my union membership, and I joined the National and Local Government Officers’ Association—NALGO—which is now part of Unison. I think that NALGO was an acronym for “Not A Lot Going On”—[Laughter.] I have been a trade unionist all my adult life, and I had the honour of working with many very decent and honourable union officers, both full-time officials and lay officials who were elected by their peers in the workplace.

I have also been an employer; I was deputy leader of Gateshead Council. Back in the days before we had the severe and harsh cuts that we currently have to go through, we had something like 11,000 employees in Gateshead. They covered a whole spectrum of different professions, providing public services for the people of the borough and the constituency that I represent. We prided ourselves on having good industrial relations and having good dialogue with our workforce on a regular basis. There were of course times when there were problems, but we managed to talk through the vast majority of those problems through good, robust and—on occasion—friendly industrial relations.

I have been above that as well; I have also chaired a national negotiating committee of the LGA called the Soulbury committee. We looked after the interests of advisers for schools, educational psychologists and other professionals of that nature. I therefore have an understanding of the strategic role that employers play in good industrial relations.

The Government need to understand why business is not that keen on these provisions. For instance, they should read Personnel Today, the journal for human resources professionals and practitioners. An article in that journal states that:

“You can have the most sophisticated industrial relations structures, follow all the rules and negotiate ad infinitum, but you will get nowhere if your relationships with staff and their union reps aren’t based on trust”.

It continues:

“This was abundantly clear during the recent civil service industrial action and the narrowly averted strike at British Airways (BA). We see this time and again. An organisation might call us in because it can’t get an agreement signed off, or the process has become too uncomfortable for both sides. What we frequently find when we get there is a climate of mistrust, entrenched ideas, and even outright hostility between union and management, employer and worker.

It doesn’t have to be this way. Look at Co-operative Financial Services, where we recently facilitated a management/union agreement over outsourcing—one of the most sensitive industrial relations issues over the past five years. Similarly at Gillette where, faced with redundancies, the business consulted with employees at the earliest opportunity and asked the staff representatives for alternative proposals, how to approach the situation and what the final redundancy package should contain. Larger, more complex organisations can learn from these successes”.

The UK Government need to learn lessons from the real world. Instead of fighting the ideological battles of the last century, they need to start equipping this country with legislation that fosters and supports good practice, and supports workers and their representatives. The legislation needs to recognise not only that it is right and fair to support the weakest and the most vulnerable but that, ultimately, as the best employers have repeatedly demonstrated, it is good for business too.

[The Minister for Skills (Nick Boles)]

It is a pleasure to be starting what I hope will be the final day under your chairmanship, Sir Alan. Sometimes during this debate it strikes me that the two sides of the Committee are discussing completely different pieces of legislation. Both Opposition parties portray the Bill as one of the most egregious attacks on fundamental human rights since King John, whereas I would describe it as, to borrow a phrase from the previous speaker, a NALGO Bill, in that there is not a lot going on.

What the Government are proposing here is nothing more than a set of provisions that seek to change behaviour within the public sector. After all, the public sector is funded by taxpayers: they go out to work to earn money and they pay taxes, so they have a right to see that money spent responsibly. We hope that, in the light of public scrutiny of the information relating to facility time that public sector employers will be required to publish under clause 12, public sector employers will voluntarily renegotiate their existing facility time arrangements with trade unions and bring their spending on taxpayer-funded facility time under control.

We could, of course, have legislated now for a cap, so the idea that the clause, to cite another famous monarch, is a Henry VIII measure, an egregious attack, is false. We have heard a lot about the constitution in recent hours. We could have legislated for a cap now and no doubt the Opposition would have attacked that. We have taken the more modest route of suggesting reserve powers, which—the clue is in the name—will be kept in reserve and used only as the last resort. Only if transparency shows unacceptable inefficiencies in relevant employer spending on facility time and poor value for money for taxpayers from existing facility time arrangements with trade unions will Ministers set a cap on the time and money spent on facility time.

Amendment 101 would prevent the reserve powers being exercised so as to effect changes to a contract of employment or collective agreement, or limit the relevant employer’s discretion as to the contents of the contract or agreement concerned. The amendment would, in effect, neuter any consequential provision that regulations could make amending or otherwise modifying contracts of employment or collective agreements. As I have said, it is by no means certain that the reserve powers will ever be exercised and, should they be exercised, it is also by no means certain that this would interfere with, or override, existing contractual rights and rights under collective agreements. Most union representatives do not have contractual rights to facility time over and above their statutory rights, which we are not seeking to change.

[Jo Stevens (Cardiff Central) (Lab)]

What legal advice has the Minister received as to whether this proposal for a cap conflicts with EU law, with TUPE law or with the Information and Consultation of Employees Regulations?

[Nick Boles]

We keep going around this merry-go-round. The Government receive a great deal of legal advice from their own officers and sometimes they seek other advice. We do not publish that advice; we are satisfied with the compatibility of all our proposals with all the laws and treaties to which we are signed up. Any cap on facility time will only apply prospectively. It is, on the other hand, possible in theory—though, as I have said, unlikely in practice—that a cap may apply to ongoing, legally-binding relationships; either legally enforceable terms in a collective agreement, or in the contractual rights of individual employees. This is what is flagged in the European convention on human rights memorandum to the Bill. The Government acknowledge, however, that even the potential impacts upon pre-existing contractual arrangements should be fully debated. That is why we considered the affirmative procedure to be necessary to provide the correct level of parliamentary scrutiny.

Before asking hon. Members to withdraw their amendment I want to respond to a question, which is not specific to this amendment, about the devolution settlement. The devolution settlement does not define which individual Ministers in the Government can do things. It defines which areas of policy are devolved and which are not. We have established, and there is general consent—although it might well be wished otherwise—that employment law is not a devolved policy but a reserved policy, and therefore Ministers in the UK Government are entitled to exercise those reserved powers in relation to their responsibilities. That does not imply that, say, the Secretary of State for Health, would be breaching the devolution of health to the Scottish and Welsh Governments by exercising the reserve powers under employment law in the way that we have outlined.

[Chris Stephens]

First, can the Minister confirm that the Scotland Bill has still to reach the end of its parliamentary journey and so the issue of devolving employment law has still to be settled? The Secretary of State for Scotland is considering that matter, as I moved the devolving of employment law in Committee.

Secondly, can he confirm which Government Ministers will have the reserve power to dictate facility time for local government and health in Scotland?

[Nick Boles]

It is very clear. First, we are following the Smith commission recommendations. It may be the case that a particular Bill has not yet received Royal Assent and anything is possible, as we are in the process of discovering in our vibrant parliamentary democracy. No doubt, if there is an unexpected result, future legislation will be adjusted to reflect it. The Government’s intention to follow the Smith commission recommendations that employment law remains a reserved policy is very clear. It would be odd if we brought forward a Bill that conflicted with another Bill that we were trying to take through Parliament at the same time by presuming that that Bill was going to fail. We are presuming that the Bill will succeed, because we are following the Smith commission.

I have been clear that Ministers of the Crown can exercise the reserve powers that are reserved to the United Kingdom Government. There is no detailing that this Minister can do this and that Minister can do that. We are all Ministers of the Crown and the reserve powers of the UK Government are clearly set out in the Bill.

[Stephen Doughty]

What the Minister is admitting is quite extraordinary. The hon. Member for Glasgow South West mentioned the Scotland Bill. There is also a debate about a draft Wales Bill, which many Members of this House and the Welsh Government consider rolls back the devolution settlement. This seems to be a further rolling back. I draw the Minister’s attention to the comment from the Minister for Public Services who, on hearing the Minister’s claims on Thursday, said:

“This confirms our assertion that the UK Government cannot impose these regressive changes on Wales and any change will require our consent.”

Is the Minister proposing to take the Welsh Government to the Supreme Court if they refuse to implement the Bill?

[Nick Boles]

He would say that, wouldn’t he? He is a member of the hon. Gentleman’s party and he disagrees with the Bill. I entirely respect that, but the fact remains that employment law—to which all these provisions relate—is a reserve matter in the Smith commission proposals that all parties and certainly his party signed up to. We are currently taking Bills through Parliament which will implement the Smith commission proposals in full, therefore all our proposals, including proposals on facility time are entirely consistent with the devolution settlement. On that basis, I ask him to withdraw the amendment.

[Stephen Doughty]

I did not expect the Minister to do anything other than stick to his guns, but I find it extraordinary. There are very serious questions, not only about how the measure cuts across existing conventions and legal treaties and provisions that we are party to. I hope the Government’s legal advice is very good because I suspect there may be a number of significant challenges to the Bill.

I remain astonished at the admission that the executive powers that have been devolved since 1999 to the Welsh and Scottish Governments are being exposed as limited by the Bill. On top of the debates on the Scotland Bill and the draft Wales Bill, that is extremely revealing. Has the Minister had consultations with the Secretaries of State for Scotland and Wales about this?

--- Later in debate ---

[Ian Mearns]

The hon. Gentleman makes a valid point. Once enacted, the provision will give the certification officer the right, or possibly even the duty, to act on any complaint, no matter its source. That is a matter of grave concern. The provision is concerning and an expensive waste of time for trade unions.

As a means of restricting the rights of trade unions and their members, the provision is nothing short of disgraceful, and that has been borne out by the evidence from a whole range of international organisations and lawyers representing many interests. The provision will turn the certification officer’s role from one of protecting trade union members into one that is highly political. They may be forced to react to politicians and newspaper editors, instead of members. Where the certification officer becomes the investigating power, they will become judge and jury over trade unions, their members and officials. Trade union members—the ones we are all concerned about with the Bill—will have to foot the bill while having no easy mechanism to hold the certification officer to account for their actions.

[Nick Boles]

The Government believe that it is entirely appropriate for a modern regulator to be able to investigate properly when non-compliance with statutory requirements is suspected. The idea is nothing new, as the Electoral Commission and the Charity Commission have investigation powers that can be used proactively when they suspect a breach.

The powers are important because we want the certification officer to be able to determine as quickly and efficiently as possible whether there is a problem so that that can be swiftly remedied. If no problem is found, the quicker the doubts, representations and complaints can be dismissed, which is better for everyone concerned, including unions, employers and the public. The Bill therefore extends the certification officer’s investigatory powers into a number of areas: political funds; union mergers; union leadership elections; and the appointment of a person to, or the failure to remove a person from, a union office when they have been convicted of certain financial offences. To ensure that all the certification officer’s investigatory powers are set out in one place in statute, the Bill also replicates not-yet-commenced investigatory powers in relation to statutory requirements to maintain an accurate register of members’ names and addresses.

We want the certification officer to have investigatory powers in those areas because they relate to statutory requirements that are not only of concern to union members, but of wider relevance to the general public. Members of the public need the assurance that unions are complying with statutory requirements, and they will be given that assurance if the certification officer is able to investigate of his own volition. The investigatory powers will also allow the officer to bring in additional resources or specialist knowledge, should an investigation prove complex and technical. That will give them flexibility when choosing an appropriate inspector, including a third party, to deal with such investigations and then resolve them swiftly and effectively. It will also assist their ability to manage the certification office’s workload, should there be a sudden spike in cases.

--- Later in debate ---

[Ian Mearns]

The Minister seems to be implying that there is zero chance of the certification officer being a political appointment in future.

[Nick Boles]

There is no proposal to change the appointment procedure for the certification officer. As the hon. Member for Cardiff Central reminded us, the appointment is made in consultation with ACAS. I remind the Committee that ACAS is currently run by Brendan Barber, the former general secretary of the Trades Union Congress. The idea that we are going to be able to stuff in some political stooge is somewhat far-fetched, like almost everything that Opposition Members have said during the Committee.

On amendments 69, 70 and 71, I am happy to reassure Members that a union will continue to have the opportunity to present its case in written representations to the certification officer before a declaration is made. The officer may also allow the union to make oral representations. That right will also apply before the certification officer issues a financial penalty or conditional financial penalty. In practice, a union may have several chances to reply to any allegations and put forward a defence. Any inspector appointed is likely to make a series of enquiries, which will include dealing with the union directly, before providing their report to the certification officer.

Finally, the union will be able to appeal a certification officer’s decision to the Employment Appeal Tribunal. That will ensure that a union has the opportunity to make further representations to an independent tribunal should it believe a decision made by the certification officer was unlawful. I therefore urge the hon. Gentleman to withdraw the amendments.

[Stephen Doughty]

I welcome the Minister’s clarification on those last points. Given that, I am content to withdraw the amendments, but I hope that when we discuss the subsequent groups of amendments the Minister will explain what other position in Government has the same range of investigatory, adjudication and enforcement powers in the hands of one individual. It would be useful to understand the sort of comparisons we are looking at. The powers are very wide-ranging and the situation is very blurred.

The Minister has given assurances that the position will remain independent and so on, but he mentioned a spike in cases: perhaps he suspects that there might be such a spike. Opposition Members have expressed concerns about the malfeasance that might be attempted by, for example, a fascist group or someone else who wanted to tie up the certification officer’s time or, indeed, a union’s finances in dealing with a bunch of illegitimate cases in order to disrupt and cause problems. That would be of great concern. I hope that the Minister can explain that in subsequent debates, but for now I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

--- Later in debate ---

[Stephen Doughty]

The Bill needs so many amendments because of its complex nature. A lot of information and important detail is contained in the relevant schedules, and it is necessary to apply the changes that we want to make to all the relevant parts of the Bill. I will go through the amendments briefly without repeating our arguments and overall concerns about this part of the Bill.

Amendment 54 would remove schedule 2, which includes provisions permitting the certification officer to carry out investigations, even though no complaint has been made by a union member. Amendment 55 seeks to ensure that the certification officer only carries out an investigation against a union where a complaint or application has been received either from a union member or an employer who employs union members. The amendment aims to tease out our concern about who might bring investigations or complaints.

Amendment 66 would mean that only the certification officer or his or her staff—and not inspectors—would have the power to require the production of documents from unions during an investigation. This is an important point because the Minister made a case in his comments on the preceding group about a potential spike in cases and the need for additional inspectors to help the certification officers conduct their work. That is a very worrying suggestion. While the Minister might give us assurances about the independence and conduct of the certification officer under the new role, appointing a legion of inspectors under them who have some sort of quasi-judicial role separate from existing legal authorities or police does not reassure me about the way in which they would conduct themselves. Will the Minister explain how he sees their role and what constraints they would operate under?

Amendment 67 would mean that the certification officer could only initiate an investigation if they have received a complaint from a member of the relevant union and if they believe there is evidence that the union has breached one of its statutory duties. The aim is to ensure that the certification officer—or one of the inspectors—does not initiate investigations on their own volition or go on fishing expeditions through union records when they have not received a complaint from union members. Does the Minister believe that the certification officer would be allowed to undertake such investigations without complaints being made by a relevant party, particularly where a complaint from the union member involved has not been received? In my view, certification officers should not have the ability to wander around initiating investigations here, there and everywhere without any just cause.

Amendment 68 would mean that only the certification officer or members of his or her staff could investigate a union. Amendment 56 would mean that the certification officer could only make a declaration that a union has failed to comply with the new reporting requirements if they had received a valid complaint from a member of the relevant union. Again, this is to ensure that the certification officer does not initiate investigations on their own volition if no one has complained. Amendment 57 would prevent a union member who was not a party to the relevant complaint seeking to enforce an order made by the certification officer.

It is a very odd set-up where, on our reading of the legislation, somebody who is not involved at all could look at a decision that has been made and then seek to enforce the order. If that is not the case, can the Minister confirm that on the record? The role of organisations such as the TaxPayers Alliance has already been commented on. Many individuals and organisations would attempt to undertake vexatious expeditions, perhaps on the back of fishing, to attempt to enforce orders against trade unions, which would already have spent quite a lot of their own funds in dealing with the complaints. They would potentially then have to fight attempts by another individual who was not even involved to try to enforce the orders made under this clause and the schedules.

Amendments 58 to 65 would further limit the enforcement powers of the certification officer and define their role rather than that of others who might be involved in potential enforcement. The amendments are designed to tease out various concerns we have about the way in which the legislation is drafted and would be applied in practice. I will be interested to hear what the Minister has to say and whether we seek to press any of the amendments to a vote.

[Nick Boles]

On amendments 54, 55, 56 and 67, the current enforcement regime is limited. With the exception of statutory duties in relation to financial records and as of next year the membership register, the certification officer may only make inquiries and take action following a complaint from a union member. That is not satisfactory. A modern regulator should be able to take action as appropriate where they suspect that there has been a potential breach of statutory duties or obligations. That is not new: the Electoral Commission and the Charity Commission both have such powers. The powers will enable a certification officer to take enforcement action once he has made inquiries and only if satisfied that there has been a breach of statutory duties or obligations in relation to the new reporting requirements. It would be wrong to restrict the exercise of the certification officer’s powers simply to responding to a complaint as the amendments seek to do, so the Government cannot support them.

Amendment 67 additionally seeks to change the test for the use of the officer’s powers of investigation. Currently, the officer may request documents when it is believed there is good reason to do so and appoint an inspector in circumstances that suggest a trade union has breached a duty. The amendment would require the certification officer reasonably to believe that evidence indicates a breach of duty.

It is important to note that the amendment relates to the test of the use of investigatory powers, not the basis on which the certification offer can make a determination that there has been a breach. Of course, there must be evidence and investigatory powers are about gathering that evidence. The tests we propose for the use of the investigatory powers are essentially the same as those that apply to the officer’s long-standing powers to investigate potential breaches of financial affairs under the 1992 Act. Those tests have been in place for a long time.

The investigatory powers are intended to assist with determining whether there has been a breach. The officer will still have to give the union the chance to make representations and then be satisfied that a breach has actually occurred before taking any enforcement action. If a trade union believes that the certification officer has acted beyond his powers or that the officer has made a mistake in applying the law when reaching a decision, it can still appeal to the Employment Appeal Tribunal. I therefore believe that adequate safeguards are already in place.

I turn to the enforcement of the certification officer’s orders. Amendments 57 to 65 aim to restrict the enforcement of orders to the officer exclusively. In tabling the amendments, the hon. Gentleman seems to be under the impression that we are trying to subcontract enforcement of the officer’s orders to individual union members. I assure him that that is not the intention. We simply seek to reflect the current situation in which complainants and other members of the relevant trade union are entitled to apply to a court to enforce obedience with the officer’s orders. That is nothing new; indeed the 1992 Act is clear on that point.

[Stephen Doughty]

Will the Minister clarify whether he believes it would be reasonable for someone who was not a party to a dispute—the TaxPayers Alliance, for example—to attempt to enforce an order or be involved in such an enforcement?

[Nick Boles]

As I think I just explained, it is currently the case under the 1992 Act that complainants as well as other members of the relevant trade union are entitled to apply to a court to enforce obedience with the certification officer’s orders. If such a body had been a complainant, there had been a process and the certification officer had made an order, under the provisions of the 1992 Act it is entitled to apply for enforcement of that order. There is nothing new in that; that has been in place since 1992 and, needless to say, throughout the period of the previous Labour Government.

Amendments 66 and 68 seek to restrict investigation activities, including the power to demand documents from a trade union, to the certification officer’s own staff. I understand concerns in relation to data protection and confidentiality, but the ability to appoint a third party gives the officer discretion to identify an inspector with specific expertise or simply to bring in additional resource should that be necessary.

Some investigations might be complex, technical and lengthy, so the officer’s permanent team may not have the time to carry them out. The amendment would reduce the officer’s flexibility in choosing an appropriate inspector to appoint, should such a case arise. It is important to note that the ability to authorise or appoint people to assist with investigations in that way is not new. It is exactly the same as the options currently available as part of the certification officer’s long-standing powers to investigate financial affairs. All the Bill does is to provide similar powers of investigation in relation to other potential breaches.

[Stephen Doughty]

I want to test the Minister a little more on inspectors. He says that there is nothing new, but he spoke previously about a potential spike in cases leading to an increased need for inspectors to help the certification officer carry out their duties. Will he tell the Committee—if he cannot do so now, perhaps he could write to us—how many inspectors would be required, whether there would be a cap on the number of inspectors that the certification officer could appoint, where those costs would be met from, whether there would be any cap on the cost and what sort of qualities would be required in the recruitment and employment of those inspectors by the certification officer?

[Nick Boles]

I am happy to write to the Committee with that information. I would like to correct something that I said previously, in case I created a false impression. I had not understood that a complainant has to be a member of the trade union. Under the 1992 Act, any member, whether a complainant or another member, can enforce the certification officer’s orders. That is what we propose to replicate for these other powers. Except in the unlikely event that the TaxPayers Alliance decided to join all the trade unions that it wanted to complain about, it is unlikely that it would be in a position to enforce those orders.

[Stephen Doughty]

So just to clarify, it would not be appropriate for vexatious individuals outside the dispute, who were not members, to attempt to involve themselves in the enforcement of orders or the investigations.

[Nick Boles]

That is exactly right. I apologise to the Committee if I created a slightly false impression.

[Chris Stephens]

Just so I am clear, is the Minister indicating that he is amenable to amendment 55, which would provide that the complainant must be a trade union member? He said earlier that he was going away to consider some aspects of picketing, in relation to what could be defined as outside interference.

[Nick Boles]

No, I am not indicating that, but we believe that the Bill already makes it clear who has the power to complain and who has the power to enforce. Moving on, I have explained that the appointment of investigators is not new; it happens under existing powers regarding the investigation of financial matters, and the Bill simply extends it to other potential breaches. The new investigatory powers contain specific provisions to impose a duty of confidentiality on any inspector that the certification officer appoints to prevent the unauthorised disclosure of personal information about union members. I therefore ask Opposition Members to withdraw the amendment.

[Stephen Doughty]

The Minister has provided helpful clarification on a number of points, but I am still not convinced that there are enough safeguards built into the Bill concerning the role and extent of investigations, and the basis on which they are made. He has said that the Bill does not change what was there before, but it will massively extend the powers of the certification officer, so I think it is only right that we look at defining limitations to those investigations, adjudications and enforcements. We may table other amendments at later stages and I would like, at the appropriate point, to press to a vote amendment 67, which would establish limits to ensure that the certification officer does not go on fishing expeditions where they have not received complaints.

Amendment, by leave, withdrawn.

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

[The Chair]

With this it will be convenient to discuss the following:

New clause 7—Certification Officer—

“For subsections (2) to (4) of section 254 of the 1992 Act substitute—

“(2) The Certification Officer shall be appointed by the Judicial Appointments Commission, and the person appointed shall have expertise in trade union law.

(3) There shall be a Certification Officer for Scotland, equal in status to the Certification Officer in subsections (1) and (2) above.

(4) The Certification Officer for Scotland shall be appointed by the Judicial Appointments Board for Scotland, and the person appointed shall have expertise in trade union law.””

New clause 10—The Certification Officer—

“In section 254 of the 1992 Act (The Certification Officer) for subsections (2), (3) and (4) substitute—

“(2) The Certification Officer shall be appointed by the Judicial Appointments Commission, and the person appointed shall have expertise in trade union law.””

[Nick Boles]

The previous two groups of amendments afforded us the opportunity for extensive debate on clause 14, so I do not propose to speak at length about it. It extends the certification officer’s investigatory powers and enables the officer to exercise a number of those powers without a complaint from a trade union member. It is entirely appropriate for a modern regulator to be able to investigate properly where non-compliance is suspected.

I turn to new clauses 7 and 10, and I remind the Committee that the provisions in the Bill, including those that relate to the certification officer, concern employment law and industrial relations matters. They are about how trade unions act and how they should be regulated. Those remain reserved matters for Westminster and are not devolved to Scotland or Wales. In my view, the provisions should apply across the whole of Great Britain, and I do not propose to rehearse devolution arguments here. I note, however, that section 254 of the 1992 Act requires the certification officer to appoint an assistant certification officer for Scotland and allows for the delegation of functions relating to trade unions based in Scotland to that assistant certification officer for Scotland. I believe, therefore, that the 1992 Act sufficiently caters for Scotland’s needs and that appointing a separate certification officer for Scotland is not necessary, especially since the 1992 Act provides a regulatory framework for the whole of Great Britain.

Turning to the proposal that the Judicial Appointments Commission should be responsible for the selection and appointment of the certification officer, I do not agree that the certification officer is a judicial office. Currently, the certification officer has a range of functions—administrative, investigatory, regulatory and adjudicatory —all of which are important aspects of the office. Hon. Members will note that the Bill further increases those investigatory and regulatory functions. It would not be correct, therefore, to describe the certification officer as a judge or other holder of judicial office.

It has been long-standing practice that the certification officer should be a ministerial appointment; a practice not, I believe, challenged or questioned by the previous Labour Government. Such appointments are typically made following Department for Business, Innovation and Skills public appointments practice: a panel, which includes an independent panel member, as well as representatives from the CBI and the TUC, considers applications and makes recommendations to BIS Ministers. In making its recommendations, the panel must only put forward names of candidates that are appointable—that is, who have demonstrated competence to perform the role. It is then for the Secretary of State to make the final decision on whom to appoint. This is nothing new and certainly nothing unusual.

I am keen to stress that the certification officer is, and always has been, independent of Governments of whichever party. Ministers have never directed what the certification officer does. Indeed, no one has suggested otherwise since 1975, when the office was set up. The certification officer is appointed by the Secretary of State after consultation with ACAS, but as his annual report, deposited in the Libraries of both Houses of Parliament, points out, he is independent from both ACAS and the Secretary of State for Business, Innovation and Skills. As the Committee knows, we want to enhance the role of the certification officer to ensure robust and effective regulation of trade unions. We want to modernise this regulatory role to bring it up to date with a new, modern system for industrial relations. Our changes increase the regulatory aspects of the role. The Government do not therefore think that appointment of the certification officer by the Judicial Appointments Commission is appropriate.

Turning to the proposal that the certification officer should have expertise in trade union law, I agree, of course, that the certification officer should have knowledge of trade union law, but I do not believe that it is necessary to prescribe this in legislation, primarily because to do so risks limiting the range of candidates that could perform the role in future. In any case, the recruitment panel will only recommend to Ministers appointable candidates for the role of certification officer and those candidates will need to demonstrate to the panel that they have full competency for the role. For these reasons, I ask hon. Members to withdraw the new clauses.

[Stephen Doughty]

I am somewhat bemused by the Minister’s comment that the certification officer is not a judicial officer. He has explained the wide powers that the certification officer has, so I am very interested to know what positions the Government consider to be comparable. Most people would consider the certification officer to have a quasi-judicial role, at the very least, and therefore we need some very strict controls about how it is regulated. The crucial point is that we are moving well beyond the original role set out for the certification officer. As my hon. Friend the Member for Cardiff Central said, this is not to comment on the suitability or the work that has been done by the current certification officer, who, from all my experience and that of the stakeholders I have engaged with, has done a very good job, but this is a complete change in the role and its powers. That change requires a fresh look at how the certification officer is appointed.

Our new clause would provide that the certification officer in Great Britain would be appointed by the Judicial Appointments Commission. Currently, as we have heard, the role is appointed by the Secretary of State for Business, Innovation and Skills in consultation with ACAS. The Minister went through the process of shortlisting and so on, and obviously, it is great that a number of stakeholders are involved. However, of course the final decision rests with the Secretary of State and that, again, gives wide latitude to a Secretary of State to veto or to appoint someone partisan or political. Given the nature of the rest of the Bill, many of us might strongly suspect that that would happen.

The Secretary of State for Business, Innovation and Skills of course regularly consults many different stakeholders, but as we saw in debates about the steel industry he seems willing to ignore all the advice and carry on regardless. I have no faith as to whether things would continue in that vein, when I consider the intent and purpose of the Bill.

We all agree that the certification officer should be independent of Government and required to have expertise in trade union law rather than just knowledge of it. Demonstrable knowledge could be an ability to list by rote the clauses of the Bill. Someone who takes such a wide range of powers needs a detailed understanding of the provisions. The 1992 Act does not specify the qualifications required, but the Bill gives the certification officer extensive new powers and remits, and it is only reasonable to expect the person appointed to have expertise in that regard, particularly given the various aspects of the role.

If the Minister intends to reject the new clause, will he explain what consultation, as a minimum, he would expect for the new role? Will things just carry on as they do under the old system, with the limited involvement of the TUC, CBI and so on at the shortlisting stage, or does he envisage a wider range of people being involved? Will he give wider assurances about the type of qualifications and other requirements? Given the nature of the proposed role, we believe that the certification officer should be appointed by the Judicial Appointments Commission—that is only right—and that there should be a clear requirement for expertise in trade union law.

New clause 7 is essentially similar to our new clause in its purpose; I understand why the hon. Member for Glasgow South West and his hon. Friends have tabled it, in relation to Scotland. As I have said before in similar debates, we want the fairest settlement in the Bill for workers and trade union members across the UK, and I hope the hon. Gentleman understands that that is what we intend with our new clause. It would deal with the whole of Great Britain, not just Scotland.

--- Later in debate ---

[Nick Boles]

We do not accept that the Bill would dramatically expand the certification officer’s role. We are simply replicating the investigatory powers that he already has in relation to financial matters with regard to the new matters that he will have the power to investigate, so we certainly do not see any basis for changing how he is appointed. Previous Governments who were happy for him to have those investigatory and regulatory powers in relation to financial matters thought the arrangements for appointment were adequate. I commend clause 14 to the Committee and ask Members to resist new clauses 7 and 10.

[Stephen Doughty]

To clarify, we will press new clause 10 to a vote at the appropriate point.

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

--- Later in debate ---

Enforcement by Certification Officer of new annual return requirements

[Nick Boles]

I beg to move amendment 94, in clause 15, page 12, line 23, at end insert—

‘( ) In section 45D of that Act (appeals from Certification Officer), after “31” insert “, 32ZC”.’

The amendment adds a reference to the new section 32ZC (inserted by clause 15) in section 45D of the 1992 Act. The effect is that decisions made by the Certification Officer in relation to the enforcement of the new annual return requirements provided for by clause 15 are subject to a right of appeal.

The amendment rectifies a small omission in the clause relating to appeal rights. Where a union fails to comply with the new annual reporting requirements, the certification officer will have the power under the clause to make a declaration to that effect. If the certification officer makes a declaration, he will have the power to make an enforcement order unless it is in inappropriate to do so; he will also, under clause 16 and schedule 3, have the power to issue a financial penalty.

It has always been our intention that if the certification officer makes such a declaration or order, the union will have a route of appeal to the Employment Appeal Tribunal on a point of law. That is consistent with the approach taken elsewhere in the 1992 Act. However, the clause as it stands will not provide for such rights unless a reference to the new provisions is inserted into the correct place in the 1992 Act. The amendment corrects that oversight. I trust that hon. Members will be content to accept this minor amendment.

[Stephen Doughty]

I appreciate the comments the Minister made. Given that this is a rare chink in the cloud that allows trade unions some rights to challenge use of the draconian powers provided for elsewhere in the Bill and in the clause, I do not intend to oppose the amendment. However, we will oppose the clause to which it relates.

Amendment 94 agreed to.

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

--- Later in debate ---

[Stephen Doughty]

I want to ask the Minister a few questions. The clause inserts new section 32ZC into the 1992 Act and gives effect to schedule 3, which we will come to shortly. The certification officer will have a new power to impose financial penalties on unions when an enforcement order has been made, and the Government will have the power to set the level of penalties in regulations. Paragraph 6 of schedule 3 states that penalties will range from £200 to £20,000. The clause also extends the ability of individual members of a union to enforce the certification officer’s orders even if that order was no concern of theirs.

Will the Minister explain a little more about the penalties—how they will be applied, the different gradings and so on? Do the Government plan to increase the limit at any point? How often does he expect them to be used in the different categories? What size of penalty does he expect to be applied?

I also want clarification on the individual member’s ability to enforce orders. Thankfully, we had clarification from the Minister that individuals outside a dispute cannot be involved, but there is a possibility that members of the union that was party to the dispute who were not personally involved could attempt to enforce orders.

The Committee might wonder why I am worried about that, but there are circumstances in which a couple of individuals who are members of a union may be involved in malicious activity and attempt to undermine others who have taken a wider, collective decision that was endorsed by other members. I want to understand who can be involved in attempting to enforce a certification officer’s orders. Can that be any member of the union involved whether or not they were personally involved in the case? I would be grateful if the Minister would clarify those points.

[Nick Boles]

New schedule A4 to the 1992 Act will enable the certification officer to issue financial penalties or conditional financial penalties in those areas where he has existing powers to issue declarations and enforcement orders, which will provide a consistent approach. He will also be able to issue those penalties for breaches of the new annual reporting requirements on trade unions in relation to details of industrial action and political fund expenditure. Those areas are all listed in paragraph 1 of the new schedule.

Paragraph 4 of the new schedule requires the certification officer, before issuing a penalty, to provide written reasons for his decision, which will allow the union to know why the certification officer has found against it. The union will also have the opportunity to make written representations and may be given the opportunity to make oral representations.

Paragraph 5 of the new schedule provides for appeals to the Employment Appeal Tribunal based on an error of fact or a point of law, or on the grounds that the decision to impose a financial penalty or conditional financial penalty is unreasonable. The appeal grounds are similar to those provided for in other financial penalty regimes and will ensure that a wrong decision can be challenged.

Paragraph 3 of the new schedule provides for enforcement of conditional penalties. In cases of non-compliance, the certification officer will issue a further order requiring that a penalty be paid immediately or by a certain date. Where a union has provided evidence of partial compliance, the certification officer will have flexibility to reduce the amount of the penalty should he choose to do so. That will encourage unions to comply with conditional penalty orders while punishing those that take no steps towards compliance.

The hon. Member for Cardiff South and Penarth asked whether any member of the union about which a complaint has been made, including members who were not themselves complainants, can apply to court for the enforcement of the certification officer’s orders. My understanding is that currently, under the 1992 Act, it is possible for any union member to apply for enforcement of such orders, but I am happy to write to him with the full detail if that is helpful.

[Stephen Doughty]

Are there any cumulative limits on the number of financial penalties or the total amount that can be imposed on any one subject in the legislation within a year, or could numerous orders of up to £20,000 be imposed, with no limit on the overall amount sought? Obviously, due to vexatious actions or fishing expeditions and so on, a union could be subject to hundreds of thousands of pounds in penalties in a year as a result of investigations, without any kind of limit.

[Nick Boles]

There is no limit, but as the hon. Gentleman points out, if a union is subject to vexatious complaints, the certification officer will not find in favour of the complainant or impose a penalty. As I have explained, the union will have every opportunity to appeal any penalty imposed improperly. Although I understand the drift of his concern, the provisions already protect unions from vexatious complaints that might lead to an accumulation of penalties.

[Ian Mearns]

There is, of course, a downside for the trade unions even in that situation, in that it is the trade union that will have to pay for the investigation.

[Nick Boles]

We will move on, I believe, to the question of how the costs of the certification officer will be paid for. It is absolutely right that the Government are proposing that, in common with other regulators, the certification officer will be paid for by the regulated. However, again, if vexatious complaints are made, we have every reason to expect the certification officer, who has all the powers necessary to do so, simply to dismiss them and not to pursue them to the detriment of union finances.

On that basis, I commend the clause to the Committee.

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

--- Later in debate ---

Power to impose levy

[Nick Boles]

I beg to move amendment 95, in clause 17, page 14, line 1, leave out

“(b) payments made by ACAS under section 254(6),”.

Section 254(6) of the 1992 Act is spent: it depends on section 115 of that Act, which has been repealed. The reference to section 254(6) in the new section inserted by clause 17(1) was included in error, and this amendment removes it. Amendment 97 repeals section 254(6) itself and the reference to it in section 254(5A).

[The Chair]

With this it will be convenient to discuss Government amendment 97.

[Nick Boles]

Clause 17 inserts new section 257A into the Trade Union and Labour Relations (Consolidation) Act 1992, to provide the Secretary of State with the power to make regulations requiring the certification officer to charge a levy on trade unions and employer associations to recover the cost of the certification officer’s expenses. New subsection 257A(3) sets out the sorts of expenses that the regulations might specify are recoverable by the levy; this includes payments made by ACAS under section 256(6).

The payments under section 256(6) were intended to enable the certification officer to make payments towards expenditure in connection with secret ballots. However, the provision to make those payments—section 115 of the 1992 Act—was repealed more than 20 years ago by the Trade Union Reform and Employment Rights Act 1993. That in turn means that section 256(6) is not required—in fact, it should have been repealed when section 115 was repealed back in 1993. Amendment 95 corrects that oversight and repeals section 256(6). Amendment 97 completes that tidying up. It removes reference to those sums being included in the expenses of the certification officer that the regulations could require the levy to recover. I commend Government amendment 95 to the Committee.

[Stephen Doughty]

I accept the Minister’s point about the two Government amendments being technical in nature, so we do not intend to oppose them, but I do want to explain briefly our concern about clause 17.

As we have discussed at length, the Bill imposes significant new administrative obligations on unions in a range of matters. They face a major increase in regulation that the Government simply would not apply to other sectors in society—certainly not to business. They will also be expected to pay for the pleasure of the enforcement of the new obligations.

As discussed, clause 17 contains a power permitting the Government to levy a charge on trade unions to cover the running costs of the certification officer, which currently stand at approximately £1 million but are expected to rise. I suspect that they will rise under the new regime, given the wide expansion of powers. The levy looks set to apply to employers’ organisations—I hope the Minister can clarify this point—including the Engineering Employers’ Federation, the Electrical Contractors’ Association, the Federation of Master Builders and the National Farmers Union. The measure will apply not only to trade unions but to a whole range of employers’ organisations.

We understand that the Government are consulting on how much should be levied, but, like on so many areas of the Bill, they have not published their consultation responses, so we are in the dark on this matter. We are expected to vote on the Bill without knowing what will happen. Will the Minister explain a little more about how the levy is expected to work, whom it will be levied on and whether it will apply to the organisations I mentioned? What level can we expect it to be at? Will it rise in the future? What provisions will there be to review it? How will it be put into operation? It is not acceptable that a Committee considering matters of this nature is making its decisions largely in the dark.

[Nick Boles]

Trade unions and employer associations, like many other organisations, should be regulated. Proportionate regulation helps to improve confidence in the way such institutions are run, which can only be a good thing. It is only fair that the cost of such regulation falls not on the taxpayer, but on those who are regulated. I note that the previous Labour Government introduced an almost identical provision, which I believe all members of the Committee support, in the financial services industry, whereby the costs of financial regulation and the regulator fall on the members of that industry.

[James Cartlidge (South Suffolk) (Con)]

I ran a small financial services business and remember paying high fees, which went up steeply, to the Financial Services Authority. I recall no consultation, about which we were unhappy, but the key issue was that the regulator failed rather substantially in the credit crunch. If such payments are made here, can we have assurances that we will have a good quality system for all those affected?

[Nick Boles]

I am certainly trying my best to ensure that the regulation of trade unions is more effective than the regulation of the financial services industry preceding the 2008 crash. I do not think that the risks are as great, and I have been the first to point out that it is unlikely that the trade unions, which mostly do an excellent job, will crash the economy in the way that the under-regulated financial services industry did under the previous Labour Government. Sir Alan, I think you are going to say that I am moving away from the point, so I will return to it.

The clause enables regulations to be made so that the certification officer can charge a levy on trade unions and employer associations.

[Jo Stevens]

Will the Minister give way?

[Nick Boles]

I am going to make some progress.

It is important to understand that employer associations are also subject to the levy. The Bill does not prescribe the amount of the levy because the certification officer is independent. It is for the certification officer to decide each year how much they need to charge to cover the costs of performing their functions. We have taken the approach of providing a regulation-making power, rather than setting out in the Bill exactly how the certification officer is to determine the amount of the levy, because the Bill expands the certification officer’s role. It is only once this new expanded role is established that it will be possible to determine precisely how the regime should work. Having said that, we also recognise that Parliament and those directly affected rightly expect to see how the regime will work when Parliament is being asked to agree the detail of the legislation. That is why the Bill sets out specific parameters for the content of the regulations. It is also why the regulations will be subject to the affirmative procedure. The clause also requires consultation before any regulations are made.

To meet our objective of cost recovery, the levy must be enough to cover the cost of the certification officer’s functions, but it cannot be any more than the certification officer needs. The certification officer cannot make a profit from their activities, nor undertake spurious activities to generate funds. That is only right as the certification officer is an independent public appointment and not a commercial enterprise.

[Stephen Doughty]

I can understand the need for the certification officer to have a role in identifying the costs of their operations, but the Minister and the Government must have a ballpark figure. Are we expecting a doubling of the £1 million figure or an increase by a factor of 10? What sort of ballpark are we in? The people affected by the levy need to have an idea, remembering that it will apply not only to trade unions, but to the employer associations that I have listed.

--- Later in debate ---

[Nick Boles]

The hon. Gentleman is entitled to speculate on any figure he likes, but we are going to leave it to the independent certification officer to assess the additional requirement and to set an appropriate levy.

We recognise that trade unions can vary greatly in size and that employers associations are often small, meaning that the size of the regulatory functions provided by the certification officer to such organisations may vary greatly. Smaller unions and employer associations may require less of the certification officer’s time and resources.

[Jo Stevens]

I am pleased to hear that clarification about employers organisations. Will the Minister tell us whether federated employers organisations, such as the CBI, will be covered by the measure?

[Nick Boles]

My understanding is that federated employers associations will not be covered, but all other employers associations will be.

We want to be able to consider whether organisations that use more of the certification officer’s time should bear more of the cost. We will need to consult before determining whether that is the right way to proceed and will only take that approach if we find during consultation that it costs more for the certification officer to regulate larger organisations that it does for smaller ones.

Let me conclude by summarising the safeguards in the Bill on the way the levy is to operate: the amount of the levy will be limited to covering the cost of the certification officer functions; ACAS, unions and employer associations will be consulted before regulations are made; the regulations will be subject to the affirmative procedure, allowing a full debate in Parliament before they are brought into force; and the certification officer will be required to report annually on the amount levied and how that was determined, which will be published and laid before both Houses, ensuring transparency.

Question put, That the amendment be made.

Oral Answers to Questions

Nick Boles Excerpts

Monday 26th October 2015 Commons Chamber

[Alex Cunningham (Stockton North) (Lab)]

5. What assessment she has made of the effect of recent changes in 16-19 funding on the (a) breadth and (b) viability of post-16 education.

[The Minister for Skills (Nick Boles)]

Since 2013-14, all 16-to-19 institutions have received a national funding rate, which we have held steady in 2015-16. We understand the financial challenges facing the sector and have therefore launched a national programme of area reviews to ensure that we have strong and sustainable institutions delivering high-quality routes to employment.

[Alex Cunningham]

The Secretary of State said earlier that she cannot guarantee funding or protection for any one age group, but the Minister knows that the further education sector has suffered a disproportionate cut in funding over many years and the area review does not even include sixth forms in schools. When are the Government actually going to do something to protect 16 to 19-year-olds?

[Nick Boles]

The hon. Gentleman is not quite right, because the regional school commissioner, who is responsible for commissioning schools in his or her area, is always going to be part of the area reviews and can bring in the perspective of sixth forms in schools, but I do not think the hon. Gentleman would think it practical to include every single school with a sixth form in the review and actually achieve a result. We are determined to achieve a result in a short space of time so that we have strong, specialist institutions that are able to provide a high-quality education.

[James Berry (Kingston and Surbiton) (Con)]

Kingston college in my constituency has federated with Carshalton college in a neighbouring constituency. Will my hon. Friend congratulate their move to consolidate their efforts and to provide better provision for young people going into further education, and will he visit Kingston college with me?

[Nick Boles]

The reason I would love to visit is that that is a model example of what the sector should be doing. It is very important for hon. Members to remember that the sector is independent: Government cannot force institutions to merge, but we can encourage them to do so and show great examples such as that outlined by my hon. Friend.

[Yvonne Fovargue (Makerfield) (Lab)]

20. Wigan colleges are concerned that the Greater Manchester area review starts with the strong presumption that the merger of colleges is the only way forward. Will the Minister confirm that other ways to achieve financial stability for colleges and good outcomes for pupils will be given serious consideration if they present a strong case for that?

[Nick Boles]

We are certainly open to a whole range of options. As I say, ultimately, colleges themselves will determine what they think will work best. I do not agree with the hon. Lady that somehow there is anything necessarily to be afraid of from a merger. A merger can mean that people save a whole lot of administrative and management costs, so they can actually pour more money into paying teachers to do the job that we all want them to do.

[Mr Gordon Marsden (Blackpool South) (Lab)]

In the last Parliament, the Government cut education funding for 16 to 19-year-olds hardest of all. Today, we learn that funding allocations for colleges and schools for the 16-to-19 sector are down over £100 million so far compared with last year. The Government have given them further instability with the flawed series of area FE reviews, jeopardising colleges and their students. With this record, does the Minister have any guarantees for the spending review to secure viability for the 16-to-19 sector?

[Nick Boles]

We might want to look over the channel to see what happens to an education sector when the Government are not getting a grip on spending and on ensuring a strong economy. In Portugal, schools have been closed and teachers laid off. In Greece, teachers have faced a 30% cut in their salaries. We are ensuring a strong sector that is able to educate young people for a life of work.

--- Later in debate ---

[Bob Blackman (Harrow East) (Con)]

9. What discussions she has had with the Chancellor of the Exchequer on the VAT treatment of sixth-form colleges.

[The Minister for Skills (Nick Boles)]

My hon. Friend knows that we can have lots of discussions about this issue, as he and I have done, but ultimately the decisions are made by the Chancellor, and we all await those with bated breath.

[Bob Blackman]

I am sure my hon. Friend agrees that academies, schools and sixth-form colleges should receive equal treatment in respect of VAT. Does he therefore agree that it is grossly unfair that, per institution, the average sixth-form college is out of pocket by £314,000? That is hardly equal treatment.

[Nick Boles]

I entirely understand those arguments and have some sympathy with them, but I would point out to my hon. Friend that sixth-form colleges, like further education colleges, also have the freedom to borrow, which many of them have taken advantage of. That is not a freedom that is available to other schools, so there are swings and roundabouts.

[Kelvin Hopkins (Luton North) (Lab)]

Sixth-form colleges are arguably the most successful education institutions in our system, in terms of educational achievement and financial efficiency, so would it not be sensible for the Government to encourage the creation of more sixth-form colleges, rather than punishing them for their success?

[Nick Boles]

I certainly agree with the hon. Gentleman that there are remarkable sixth-form colleges achieving extraordinary things, and I want to support them as best we can. As he knows, one option we are keen to explore is whether some sixth-form colleges might want to link up with groups of schools and multi-academy trusts in order to be stronger themselves and to provide more of their great education to more people.

[Mr Philip Hollobone (Kettering) (Con)]

10. How many pupils of secondary school age there are in Kettering constituency; and how many such pupils there were in 2010.

--- Later in debate ---

[Mike Wood (Dudley South) (Con)]

What assessment have the Government made of the need for greater capacity post-16 for special educational needs such as at the excellent new Pen’s Meadow post-16 facility in Pensnett, which I had the honour of opening on Friday?

[The Minister for Skills (Nick Boles)]

I was delighted to hear from my hon. Friend about the opening of this new institution. It is incredibly important that the best possible opportunities are presented to all young people including those with special educational needs, and sometimes that is best done in institutions that specialise in that. I would be delighted to learn more and maybe visit with him at some point in the future.

[Mr Speaker]

Perhaps the Minister could face the Chamber as we would all be the beneficiaries of that.

[John Woodcock (Barrow and Furness) (Lab/ Co-op)]

T6. Further to the questions asked earlier, the Minister will be aware of the merger discussions announced between Barrow sixth-form college and Furness college today, and the fact that it is prompted by the dire situation the sixth-form college finds itself in. Will he agree to meet me and education representatives from the area to discuss the unusual situation Furness finds itself in, where it cannot put courses on with the same number of people and therefore does not have the same efficiency as it does in other areas?

[Nick Boles]

Of course I would be delighted to meet the hon. Gentleman. My understanding is that this is a proposal that has been brought forward by the sixth-form college, anticipating the problems it has and trying to get ahead of them, and that is an approach we entirely welcome, but I will be happy to meet him and representatives of both colleges to understand the situation better.

[Scott Mann (North Cornwall) (Con)]

My hon. Friend will be familiar with the London challenge, which ran in the capital until 2011. As an MP for a very rural area, may I ask the Secretary of State to look at introducing a rural challenge to help support areas in North Cornwall?

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.

--- Later in debate ---

[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.

--- Later in debate ---

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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

Trade Union Bill (Eighth sitting)

Nick Boles Excerpts

Thursday 22nd October 2015 Public Bill Committees

[Chris Stephens (Glasgow South West) (SNP)]

It is a pleasure to serve under your chairmanship, Sir Edward. I indicated to Sir Alan that I wanted to speak on this group of amendments, to give a general overview of clause 10.

Our view is that the provisions in clause 10 are a democratic and constitutional outrage, for two reasons. Before I was elected, I was secretary of the Scottish National party trade union group, which has a total of 16,000 members from all trade unions. Some of them have decided not to contribute to the political fund of whatever trade union they are in, while others do. It is important that they have that choice. The trade union movement is having a discussion about whether it should be funding one political party or individual candidates who support its aims and objectives. The important point is that it is up to trade unions and their members to have that debate. I am concerned that clause 10 will not only interfere with donations to political parties, but ignore the Churchill convention, with clear constitutional implications.

First, it is important for our society that trade unions make a contribution to the political life of the country, and our society has been better for it. We should be looking at political funding arrangements across the board and in consultation with all parties, not just slipping in these measures as part of the Bill, which is why the SNP has tabled a new clause, which we will come to later.

Secondly, to return to the points made by the hon. Member for Gateshead about political funds being used for general campaigning, as it stands, clause 10 is clearly a way of preventing the trade union movement from engaging in such campaigning. It is important to mention some of the other organisations and campaigns that have received trade union funding. There have been health and safety campaigns, which are very important. HOPE not hate and other anti-fascist and anti-racist organisations have received the majority of their funding from trade unions. As the general secretary of the PCS trade union indicated, funding has gone to campaigns on public service provision and keeping public services in public hands.

Our position is simple: we oppose clause 10 and will join anyone to ensure that it is defeated.

[The Minister for Skills (Nick Boles)]

You were not with us this morning, Sir Edward, but the hon. Member for Cardiff South and Penarth gave a broad introduction to the provisions on the political fund, as well as addressing the amendments. I do not want to take long because we are trying to save time. The arguments made by the shadow Minister and other Members betray a strange lack of confidence in their appeal to union members. It seems to me odd to suggest that the only way they can secure the donations of union members is by somehow relying on the inertia that prevents a union member from exercising their opt-out.

The hon. Gentleman talked about pension contributions and auto-enrolment. One of the main reasons for introducing automatic enrolment into a pension is that it is pretty hard to persuade individual savers, particularly young people on relatively low wages with lots of other immediate demands on their cash, of the benefits of a pension that they are not going to receive until 40 or 50 years in the future. Yet we all know that, both in their direct personal interest and in the public interest, it is important that they save for a pension. Surely the hon. Gentleman is not suggesting that the appeal of the Labour party and its policies is so distant or vague that it is not possible to persuade individual union members that they have an immediate, direct and personal interest in ticking a box and opting in.

Although I understand the strength of feeling on this issue, the Opposition betray their own defensiveness rather than making a strong argument.

[Chris Stephens]

I would gently point out to the Minister that many trade unions currently have a system whereby members have to tick a box for the political fund. Indeed, my own trade union, Unison, gives the choice of ticking a box next to either the affiliated section, from which funds go to the Labour party; the general political fund section, which I happen to tick; or for no political fund arrangements at all. Some trade unions already offer the option through ticking a box, so why is the change necessary?

[Nick Boles]

I am grateful to the hon. Gentleman, who I think has made my argument for me. All that we are requiring is that every trade union member be asked to tick a box to contribute to a political fund, rather than being given an option to tick a box to get out of it. Since he is happy to do that and happy for others to do the same, it does not seem particularly onerous.

Amendments 34 and 35 deal with the opt-in renewal notices for political funds. It must be right that a member decides whether to contribute to a political fund and has an opportunity to renew their choice; the question is over what period. In this country, it seems that renewing political choices every five years is becoming a normal pattern, which is why we suggest five years in the Bill. We have provided that members can renew their opt-in at any time in the three months before a renewal date, reducing the burden on unions of different renewal dates for different members. The Bill also provides that members who have recently decided to contribute will not have to renew their opt-in again shortly afterwards. If a member opts in six months before a renewal date, they do not have to renew again at the next renewal point. Amendment 35 would undermine that provision, which is meant to help unions to manage the opt-in process.

Clause 10 creates a workable system of opt-in and renewal for trade unions with political funds. The amendments would work against their effectiveness for unions and their members, so I urge that amendment 34 be withdrawn.

[Stephen Doughty]

I am not seeking to press amendments 34 and 35 to a vote, but I want to be frank with the Committee: we know what the Government are up to. Most people out there in the country know what the Government are up to. The Government have a very presentable representative in the Minister, who comes across as a model of reasonableness and everything else, but he has some more sinister elements behind him—[Interruption.] Not here! I should clarify that I was not referring to the Minister’s Parliamentary Private Secretary, the hon. Member for Newton Abbot, who is equally as respectable. I am referring, of course, to the sinister elements hiding out in the Cabinet Office, the Treasury and elsewhere, who clearly intend to break the consensus on party funding in order to undermine the funding of the Labour party and political campaigns that might target the Government and their policies, while not opening their own funding arrangements to the same degree of scrutiny.

The SNP inquired as to why I had photos of Margaret Thatcher and the former Leader of the House and Member for Richmond (Yorks) on my desk. In Cabinet minutes from 1984, the former Prime Minister, Margaret Thatcher, said that

“legislation on this subject, which would affect the funding of the Labour Party, would create great unease and should not be entered into lightly”.

The former leader of the Conservative party, a respected figure in the House, said in a submission to the Committee on Standards in Public Life:

“The question of trade union funding of parties is not a matter of direct concern to the Conservative Party. We recognise the historic ties that bind the trade union movement with the Labour Party.

The Conservative Party does not believe that it is illegitimate for the trade union movement to provide support”.

Those are important points that exemplify how extraordinary the Government’s move is. It moves away from that consensus. They can of course impose their will on us, as they have a majority in the House, but that is not one of the principles of the democracy in which we operate. I hope the Minister will go back to those more sinister elements outside this room and urge them to rethink the measure. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Nick Boles]

I beg to move amendment 91, in clause 10, page 6, leave out lines 6 to 12 and insert—

‘(3) The first renewal date—

(a) for a trade union in relation to which a political resolution is in force on the commencement date, is the date falling five years and three months after that date;

(b) for any other trade union, is the date falling five years and three months after the first date following the commencement date on which the union passes a political resolution.”

This amendment is intended to improve the drafting as regards the “first renewal date”, and in particular to make it fit better with section 93(2) of the Trade Union and Labour Relations (Consolidation) Act 1992 (amalgamations) where that section applies.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 36, in clause 10, page 6, line 8, leave out “five years” and insert “ten years”.

The amendment would make the first renewal date for a union‘s political fund established before the Bill comes into force 10 years and three months rather than five years and three months.

Amendment 37, in clause 10, page 6, line 10, leave out “five years” and insert “ten years”.

The amendment would make the first renewal date for a union‘s political fund established after the Bill comes into force 10 years and three months rather than five years and three months after the ballot.

Amendment 38, in clause 10, page 6, line 13, leave out “five years” and insert “ten years”.

The amendment would make all renewal dates for unions’ political funds after the first renewal date 10 years rather than five years.

Government amendment 96.

[Nick Boles]

Amendment 91 is a minor amendment to clause 10 that fixes the first renewal of an opt-in to a political fund so that it is three months and five years after the date of the political resolution. The language is more precise than the current drafting, which refers to the date that a political fund is established or the date of a ballot. The revised wording also reflects the language used in the provisions of the 1992 Act dealing with amalgamations. To be clear, this is a technical point and there is no change in policy. It should make it easier for unions to understand and apply the law in this area.

Amendment 96 deals with how the new opt-in provisions apply to the amalgamation of the unions. It fixes the first renewal date where two or more unions join together. We have ensured that renewal dates will be fixed by reference to the date of a political resolution. This means that where two unions amalgamate, the first opt-in renewal date for the amalgamated union will be the earliest of the renewal dates of the different amalgamating unions. That will ensure that all union members will be subject to the same renewal dates, which will be administratively easier for the unions concerned.

I now turn to Opposition amendments 36, 37 and 38, which would replace the opt-in renewal date from five to 10 years. Our aim is to promote greater transparency for union members. We want members to make an active choice based on a recent and up-to-date decision. We do not believe it is right that a union member makes the decision to opt in to a political fund and is not asked to do so again for as long as 10 years. That could not be judged a recent active choice.

[Chris Stephens]

During consultations on the Bill, did anyone object to having a trade union ballot in 10 years and want one every five years? What is the purpose of that? I would have thought that 10 years, which is two electoral cycles, would be sufficient.

[Nick Boles]

I certainly accept that there can be different, legitimate views on this question. As I said in response to the previous debate, given that our system seems to be moving towards regular five-year cycles of political decision making, we felt that it was, if nothing else, neat to have a five-year cycle of decision making about contributions towards political funds.

A five-year renewal date balances the need for unions to have certainty about how much income they have for political activities against the need to ensure that a member’s decision to contribute remains current and relevant. We are also taking steps to remove the burden of different renewal dates on unions, and ensuring that future renewal dates are kept the same for all members of any union. We are therefore allowing for a five-year renewal notice to take place any time in the three months before the renewal date. The Bill also provides that where members who opt in during the six-month period before the five-year renewal, they should not have to renew their opt-in again at the renewal date. That prevents, for example, new members who have made a recent decision to contribute to a fund from having to renew their opt-in again very soon after.

[Jo Stevens (Cardiff Central) (Lab)]

Were we to move to a system of contracting-in to the political levy with five-year renewals, what is the case for retaining the political fund ballot every 10 years? Will the Minister do away with that?

[Nick Boles]

We have no plans to change that. If the hon. Lady wants to table proposals at the next stage in the House, I will be happy to engage with that question. Since she has not done so, I am not in a position to engage with it directly now—I am not sure it would be entirely in order to do so, although it is a perfectly legitimate question for her to raise.

To conclude, renewing the opt-in decision every five years will ensure that members’ decisions remain current.

[Stephen Doughty]

I do not have a lot to say about Government amendments 91 and 96, because we fundamentally oppose the principle of the clause and all associated measures, and intend to vote against it when we come to that point.

As the Minister has pointed out, Opposition amendments 36, 37 and 38 go with the status quo, sticking with the 10 years and three months provision as it is. That is obviously a matter for debate, although I am not sure that the Minister is making a strong argument. He certainly did not adequately respond to the point raised by the hon. Member for Glasgow South West about who has requested the change.

When combined with the other measures, this appears like another attempt to prevent this money from reaching political causes and parties.

--- Later in debate ---

[John Howell]

I thought the hon. Gentleman would ask that question, so I thought of an answer. The answer is that I am not suggesting that anything at all was wrong with that election or, indeed, other elections that have used electronic voting, but I urge extreme caution where it is applied to elections that are enduring and on a statutory basis.

To finish—I wanted this to be only a brief intervention—I go back to Jim Killock of the Open Rights Group. He said:

“Given the vast numbers of machines that are infected by criminally controlled malware and the temptation for someone to interfere in an election, internet voting is a bad idea.”

[Nick Boles]

Will my hon. Friend tell us where he unearthed those comments from Jim Killock to ensure that Hansard can record that for all Members?

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[Chris Stephens]

The article was about my thoughts on the first 10 weeks of Parliament. The headline was “Bizarre, Surreal, Orwellian”, which I think sums up quite nicely some of the arguments we hear from the supporters of the Bill, who talk about modernisation but will deny trade union members the right to use e-balloting.

I hope the Minister will explain why, in response to every written question I have asked him, a written answer comes back with a link to a website. If it is okay for him to do that to me, it is acceptable for a trade union to email its members with a link to a ballot paper. It is independently scrutinised. Companies such as Electoral Reform Services and MyVoice have been able to do that, and there have been no concerns about those ballots.

[Nick Boles]

Before getting into the meat of this, I start by emphasising how important line-by-line deliberation on the Bill is. We have been, and still are, very keen that every Opposition Member—it is particularly important for Opposition Members—can exploit that opportunity. We also, however, have a timetable agreed by the usual channels, and I am keen that all parts of the Bill, all amendments to it and all new clauses receive the same level of scrutiny, so that nobody can claim the Government somehow prevented the Bill from receiving that scrutiny. As a result, I will not deliver the more detailed response that had been prepared. My response will relate to the amendment and all the new clauses in this group, so that we can make some progress.

Where we started from in drafting the Bill was, in a very sense, very simple. We started by suggesting that all the new decisions we were asking union members to take should be communicated according to the existing methods provided in the legislation. It may have been naive of us to think that position would be unchallenged, but it was for no more sinister—the word used by the hon. Member for Cardiff South and Penarth—reasons than that. We were simply reflecting existing provisions in the Bill.

Since the Bill was published, there has been a great deal of debate in public, in evidence sessions and now in Committee about the question of alternative methods of voting—in particular, e-balloting. From the very first time that was raised, the Secretary of State, the Prime Minister and I have made it clear that we have no objection in principle to online voting or e-balloting, as it is sometimes called. Indeed, I would go further: it would be extraordinary if, in 20 years’ time, most elections in most countries in the world on most questions of importance were not decided through electronic means of communication. Just as we have been willing to accept freely and openly the principle that that is a desirable state to move towards, it is important for Opposition Members not to be quite so dismissive of the practical objections that were so well highlighted by my hon. Friend the Member for Henley.

It is incredibly important to acknowledge that the Open Rights Group, which gave evidence to the Speaker’s Commission on Digital Democracy that only reported in January this year, is not some Tory front organisation. These people are genuinely concerned about a genuine question at hand—the legitimacy, safety and security of voting. It is important that the Opposition do not dismiss those objections out of hand by plucking out examples of very different decisions and transactions. Specifically, the particular matter when it comes to voting is the need to ensure that the system that captures the data does not allow the person casting the vote to be identified. That does not apply to banking transactions. Once someone is inside the secure system, it is fine for any part of that system to know their identity; indeed, it is critical that the system should know their identity, so that the money is transferred out of and into the right account.

With voting, the system needs to be anonymous, to preserve the individual’s privacy and secrecy; but it must also be able to guarantee the identity of the individual—that they are indeed the voter claiming that vote. It must be accountable, to guard against malpractice and fraud.

[Ian Mearns]

rose—

[Nick Boles]

I will give way briefly, but I will not take many interventions.

[Ian Mearns]

I am very grateful to the Minister, but even with the traditional form of voting in a general or local election in this country, it is still quite easily possible for the returning officer to identify the way in which a particular voter has voted; because when they go to a polling station they are given a ballot paper on which there is a number. There is a counterfoil on which the individual identifying letters and numbers from the register are put down, which has the same number on it, and the person puts their ballot in the box. At a later stage the returning officer could, if they were so minded, identify the number, check back and see who cast that ballot.

[Nick Boles]

That may well be the case, and of course there are also problems with postal ballots; but pointing to problems of fraud and malpractice in other traditional voting systems does not necessarily give support to a move to an entirely uncharted voting system.

There is only one—I think I will put it in layman’s language—respectable democracy, which we would all admire, that uses online voting for elections. That is Estonia, and the reason it can do it is that they have identity cards there. It is much easier to see how a system could work in such a situation, but the Conservative party and, indeed, many Members in the Labour party, resisted identity cards as a profoundly un-British step, because we do not want anyone to march up to us and say “Ausweis, bitte.” That was why we resisted them; but it is hard to see how online voting could happen without identity cards.

We are not willing to make piecemeal or rushed decisions about possible ways of overcoming the practical objections that have been identified to online voting, e-balloting or online communication. However, we have been clear about our position on the principle. We are willing to go through those arguments in later stages of the Bill. I assure the Committee that there is at least as much interest in the question in the other place, where there will also be an opportunity for scrutiny of the Bill.

I have no doubt that at some future time the practical objections that I have outlined will be overcome. It is a matter of time and human ingenuity. I have no doubt that we will get there, and we are happy to work with all members of the Opposition, and all groups outside Parliament, to ensure that eventually we do get there. However, at this point I urge the Committee to resist the amendment.

[Stephen Doughty]

I hope the Minister will respond to a point on which he has not responded: the issue of secure workplace balloting. It already happens and is seen as a secure method for other elections, yet he seems to be ruling that out as well. Perhaps he did not mean to, and perhaps he will come to that. I do not know whether he wants to intervene on me now, but I would like to hear what he has to say.

[Nick Boles]

The hon. Gentleman is right, and I glided over that because I was trying to avoid getting bogged down in a long speech. I am actually less persuaded about that than I am about the principle of online voting in the future, once the practical objections have been overcome. That is because I believe that the process that is in place that allows workplace balloting for union recognition votes is an extremely laborious one, in terms of the qualified party, or whatever it is called, and everything else. I would have thought that the idea that people will have to go through that process any time they want to hold a strike ballot is far worse than sending people postal ballots.

Secondly, there is this idea that the problem of potential intimidation in workplace ballots does not exist with union recognition, but I do not think it is an absolutely equivalent situation. In a decision on trade union recognition, all employees are deciding whether to vote to accept the presence of a trade union in the workplace. The employer can observe who is voting, but not whether they want to join a trade union. That contrasts with industrial action ballots, in which those entitled to cast a vote are, by definition, members of a trade union and may not want to be observed by their employer participating in the ballot. It is hard to see how there can be workplace balloting without enabling the employer to work out who in their workforce is promoting industrial action. I am actually less persuaded of the merits of that argument.

I think I have made my point clear on all the amendments and new clauses. I urge the Committee to resist them all.

[Stephen Doughty]

I appreciate the Minister’s clarification, but I do not believe it stacks up. As we have made clear, there is a lot of support for our amendment from the trade unions that the Bill will affect, because they are entirely satisfied that the secure methods we have set out, including the security provisions—particularly given that they are used already—would enable them to conduct ballots safely and securely.

--- Later in debate ---

Division 21

Ayes: 7

---

Labour: 5
Scottish National Party: 2

Noes: 9

---

Conservative: 9

[Nick Boles]

I beg to move amendment 92, in clause 10, page 6, line 44, leave out “Subsection (4) applies” and insert

“Subsections (4) and (5) apply”.

This is a drafting amendment linked to amendment 93.

[The Chair]

With this it will be convenient to discuss the following:

Government amendment 93.

Amendment 41, in clause 10, page 7, line 3, leave out subsection (4).

The amendment would remove the transitional provision which prevents unions three months after commencement of the provisions from collecting monies from members for political funds unless they have made a choice to contribute.

Amendment 40, in clause 10, page 7, line 3, leave out “three months” and insert “ten years”.

The amendment would extend the transitional provision from three months to 10 years after which unions would be unable to collect monies from members for the political fund unless they had made a choice to contribute.

[Nick Boles]

Amendment 92 is a drafting amendment linked to amendment 93, which deals with the withdrawal of an opt-in during the three-month transition period. The Bill provides that, during the three months after commencement, members who are already contributing to a political fund will be treated as having opted in under the new system. That will allow unions to continue to deduct political contributions from those members for three months. At the end of that period, unless members have chosen to contribute under the new arrangements, they will no longer be able to contribute.

Amendment 93 makes it clear that a notice to withdraw during the transition period will take effect at the end of the month after it is served, which will ensure that members who no longer wish to contribute can stop doing so during the time of transition. This is a minor amendment to ensure that notice to withdraw an opt-in from members who are already contributing will be in line with the new provisions.

Amendments 40 and 41 seek to remove the three-month transition period between the old and the new opt-in arrangements for political funds. Amendment 40 would replace “three months” with “ten years”, which would mean that the new opt-in system would not apply to those who already contribute for a whole decade. Members of trade unions would not be required to opt in for 10 years. It is of course important to give a reasonable amount of time to ensure a smooth transition from the current system, but 10 years is simply not reasonable.

Amendment 41, on the other hand, would mean that all current contributions ceased on the day that clause 10 came into effect. A union would not be able to collect any funds until a member had actively opted in, which would be very extreme. Our transitional period strikes a balance. The purpose of the three-month transitional provision is to give unions and members a reasonable period to move to the new arrangements. We do not seek for contributions to cease from day one. Unions will still be able to collect funds for three months and members will have three months to put their new opt-ins in place.

[Stephen Doughty]

I intend to be brief. I do not have a lot to say about Government amendments 92 and 93, which, as the Minister pointed out, are minor. Given that we oppose the principle of this clause and what the Government are trying to do, I do not feel the need to say much more.

I want to speak briefly to amendment 40 on extending the transitional period. We will likely return to this issue on Report or in the other place. It is out of the ordinary for the Government to introduce such a short transitional period for extremely major measures that affect the funding and operations of trade unions’ political funds and other matters. We heard in oral evidence, and probably on Second Reading, that England has had two years to prepare for the introduction of the 5p plastic bag tax, so why, in such major legislation, are we being given only three months?

--- Later in debate ---

[Julie Elliott]

I thank my hon. Friend for his intervention. As I have said, there is no reason for this clause other than political motivation. If the Conservative party in government wants to look at how political parties are funded, I urge it to use the system of all-party talks that has worked for decades.

[Nick Boles]

I will try to reassure Opposition Members on a few points. They seem to be suggesting that this is somehow an egregious singling out of trade unions to require a level of transparency that does not apply to anyone else.

First, let me assure the hon. Member for Cardiff South and Penarth that employers associations will be covered by the provisions in clause 11. Even more importantly, companies are already required to declare the details of spending on political activity above £2,000 per annum and have been for a long time. To require the same of trade unions therefore does not seem unfair or unreasonable.

There is currently inconsistency in the level of detail provided in union returns on political expenditure. Some unions are transparent and provide detailed information in their annual returns to the certification officer. We want the example of those unions that provide clear information to be followed by all. That is why we propose that where political expenditure is more than £2,000 per annum, expenditure should be broken down to detail the different items of spending. An equivalent provision applies to companies.

[Jo Stevens]

It seems implicit from what the Minister has just said that the Government believe that some trade unions are not being transparent in their declarations. Is there any evidence to back up that assertion?

[Nick Boles]

We want to ensure that all unions are declaring everything above £2,000, which is what the provision states, and currently not all unions do so. Amendments 44 and 45 would undermine the transparency that the clause seeks to achieve.

Let me turn to amendment 98. We propose that the Secretary of State may make regulations to increase the amount from £2,000. That will ensure the legislation is future-proofed. The regulations will not allow the amount to be decreased, which would make the provisions more onerous; it can only be increased. I am a little puzzled by the shadow Minister’s concerns, because all that would do is change the level of granularity required in trade unions’ declarations to reflect either inflation or changing circumstances in society. I therefore him urge hon. Members not to press their amendments.

[Stephen Doughty]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

--- Later in debate ---

We also think it important that information should indicate where the trade unions have provided a contribution. For example, I was active in one trade union and I know that it paid the full salary of people who were on its national executive committee. Unions do make a contribution; they pay their employers for access to offices, telephones and the like. If this is an assault on facility time, we need to be clear about the damage that it will do—health and safety checks not being complied with, interfering with the great work that the learning reps are doing already—and it seems to be without any support across the public sector. It also impacts on some of the constitutional debate that we had earlier. There will of course be a debate on the clause later, and I ask hon. Members to support the SNP amendments.

[Nick Boles]

I apologise again for arriving late, due to a misunderstanding about the time at which we had been requested to return. We will try to make as rapid progress as possible to make up for it.

[The Chair]

Order. On that point, it is the convention—I have been in the House for many years—that when the Chair says 15 minutes from the last Division, he normally means 15 minutes from the start of the Division. I do not want to embarrass anyone, but just so we know where we stand in future.

[Nick Boles]

Thank you, Sir Edward. We are all relative newcomers in this place, so it is good to learn.

There is less difference between the Government and the Opposition than Opposition Members have tried to make out. They have made an eloquent defence of union learning representatives, health and safety representatives and other union officials who perform union duties in the workplace. No one on the Government Benches disagrees with the value that such people add to their workplaces or the extent to which they can help ensure that workplaces are safe, while also offering opportunities for people to advance and progress.

If you listened only to the speeches of Opposition Members, Sir Edward, you would have concluded that somehow we were banning facility time. All we are seeking to ensure, however, is that there is transparency about facility time. Conservative Members, previously in coalition and now as a Government on our own, passionately believe in the power of transparency to lead to good decisions. Transparency gives the public who pay our salaries and those of everyone in the public sector—the public should truly be referred to as the employers in the public sector—an ability to make a reasonable judgment about whether public sector bodies are managing their money well. The public are absolutely capable of understanding the arguments about the value of health and safety and learning representatives in the workplace.

[Chris Stephens]

The Minister indicated that he is not minded to ban facility time, or that that is not his intention. Is he therefore indicating that he will withdraw clause 13 of the Bill?

[Nick Boles]

No, I am not, because clause 13 does not ban facility time. It would take a reserve power—one that we would not like to use and would only use reluctantly—to cap the amount that can be spent on facility time, which is a very different thing from banning it altogether.

[Stephen Doughty]

I wanted to ask a similar question. I am incredulous that the Minister is asking us to believe that he is introducing a reserve power, which is very wide ranging, without the intention of using it, in particular given what we know about what happens in Whitehall Departments. They want to get as much information on the table so that the Government can then step in and cap things. Is that not what the Government are trying to do?

[Nick Boles]

I understand that the hon. Gentleman will always think the worst of us and that I am probably not going to be able to persuade him otherwise. If we wanted to do that, however, why are we not introducing a cap now? We have a figure based on the civil service—we introduced transparency on facility time, which produced a substantial drop in the amount of public money spent on facility time—and we could perfectly well introduce a cap now. We even probably have the votes for it, but we are not doing so, and the reason why we are not doing so is that we do not want to go there. We do not want to have to resort to that. We want transparency to do the work that Conservative Members have consistently always believed that transparency does.

It is getting late, so I shall turn to the detail of the amendments. The Government want to promote transparency and public scrutiny of facility time, and encourage public sector employers to moderate the amount of taxpayers’ money they spend on such time in the light of that scrutiny. At a time of fiscal consolidation, it is unacceptable for taxpayers’ money to be spent on facility time without proper monitoring and controls.

Amendment 46 seeks to limit the range of publishable information to two figures: the total number of union representatives and the total cost of facility time. The Government resist those limitations. We have already seen the success of the reforms to facility time in the civil service. The percentage of the civil service pay bill spent on facility time has fallen by three quarters, representing a saving for taxpayers to date of more than £52 million. I have not heard reports of a lack of access to learning representatives or health and safety representatives in civil service workplaces. All employers whose spending on facility time is funded by taxpayers should be held to the same scrutiny. Taxpayers deserve that.

[Chris Stephens]

rose—

[Nick Boles]

I will make some progress, because we have had a good debate. I want to ensure that we make progress and get everybody home.

It is particularly important to monitor the amount of time spent on trade union activities, for which there is no legal right to paid time off work. I repeat: trade union activities are different from trade union duties. We all accept the not only legitimate but socially important and economically valuable role of trade union duties, but that is different from trade union activities. Public sector employers and the taxpayers who pay them must be able to distinguish between such activities and business or employee-facing trade union duties, for which there is a legal right to paid time off work.

We also consider that the percentage of public sector employers’ pay bill that is for facility time should not be omitted. Simply providing a total cost would not allow benchmarking against other public sector employers or the private sector, and would be almost meaningless on its own. The publication of the cost of union representatives’ use of their employers’ facilities should not be left out either. It can include the provision of telephones, photocopiers and dedicated office space. All public sector employers need to ensure that such use, to which there is no general legal right, is appropriate and represents value for taxpayers’ money.

Amendment 74 seeks to expand the range of information that relevant public sector employers are required to publish. They would have to estimate and publish the cost savings made from their existing facility time arrangements. They would also have to agree with relevant unions and publish a statement of the value of those arrangements. We recognise that union representatives play important roles in the workplace, which include dealing with disputes locally and effectively, helping to keep workplaces safe and meeting employees’ learning needs. We also recognise that many union representatives give their own time in addition to facility time to support their colleagues both individually and collectively, but where facility time is publicly funded, employers and unions must ensure it is spent as efficiently as possible.

The Government are confident that our proposals will deliver efficiency savings. A reduction in spending on facility time across the wider public sector to levels similar to the civil service currently would deliver estimated savings of around £150 million annually—£150 million that could be spent on employing more nurses, on schools and on better serving the people who elect us to this place.

[Stephen Doughty]

Given that the Minister wants to publish costs, why is he not willing to accept our amendment, which would ensure that the economic value provided by facility time is also made clear? If he does not want to introduce this cap but wants all the information and the facts out there, what could be wrong with our amendments?

[Nick Boles]

I have absolutely no objection to any employer trying to estimate such figures and publishing them. The difficulty is that the cost of facility time is a fact that will already be in the system of any employer. Employers know who they employ. They know how much employees are paid and therefore how much their time is worth, as well as what time they are spending on their job and on union duties and activities. The hon. Gentleman is asking employers to project or estimate values, because that value is not captured. Nobody is paying for it, and there is no customer putting a price on it. I am not saying the value is not real; the value is very real, but it is not automatically captured. We are trying not to place in straitened times a huge burden of calculation, projection and estimation on public sector employers. We want them to be able to focus on spending taxpayers’ money on the things taxpayers employ us to do, such as run hospitals, schools and the like.

[Ian Mearns]

I cannot help feeling that in the past couple of minutes the Minister has encapsulated what an awful lot of people have thought about the Conservative party for an awful long time: they know the cost of everything, but the value of very little.

[Nick Boles]

I said this right at the start and will repeat it: I work incredibly closely with Unionlearn. Last night, after the House rose, I was at an event with the person who runs Unionlearn. It is a terrific organisation. It is absolutely integral to our plans to increase the number of people with access to apprenticeships. I do not need anyone to tell me how valuable that work is, but I do not believe that it is necessarily a good use of public sector organisations’ time to be producing reports estimating that value. Just make the argument; they are making the argument very well. As I say, the restrictions on facility time in the civil service have not produced great reports of a lack of availability of health and safety or union learning advice in the civil service. They have just brought a welcome reduction in the amount of money spent on the less justifiable union activities that are not protected by the law and do not produce the kind of value that the hon. Gentleman argues we should appreciate.

[Chris Stephens]

The Minister mentioned two figures: first a £52 million saving and then a £150 million target saving, which I think alarmed many of us on the Opposition Benches. Will he break down those figures for the Committee and explain how they were arrived at?

[Nick Boles]

I would be very happy to ask the Cabinet Office to circulate that information. The £150 million is an estimate of what saving might be achieved if the wider public sector made the same sort of journey that the civil service has made since the introduction of transparency on facility time.

On amendment 50, the Government consider that the negative resolution procedure is appropriate and would provide the appropriate level of parliamentary scrutiny. The regulations in question will impose publication requirements on different categories of relevant public sector employer. For example, the Secretary of State for Health will make regulations imposing publication requirements on NHS employers.

The negative resolution process is also appropriate for the power to add a body that is not a public authority but is to be treated as such for the purposes of the publication requirements. The power will not be used to bring into scope private or voluntary sector providers of contracted-out public services. Nor is it our intention to apply the publication requirements to private individuals, companies, partnerships or the like.

Subsection (9) of clause 12 will enable the power to be used only where the body has functions of a public nature and is funded wholly or partly from public funds. Both of those conditions have to be true. Specifying such a level of detail in the Bill enables the scrutiny that is now taking place.

[Stephen Doughty]

May I ask a very specific question? The Minister just said that the Secretary of State for Health would make regulations relating to facility time in the health service. Does not that expose the problem with the devolution settlement that we have described in the debates on earlier measures? Is the Minister suggesting that the Secretary of State for Health will make regulations that affect facility time in the health services of Scotland and Wales, which are wholly devolved and under the control of Health Ministers in those countries?

[Nick Boles]

Yes, because, of course, health policy and the management of the NHS in those countries will remain, as part of the devolution settlements, in the control of the Governments of those devolved—[Interruption.] The hon. Gentleman has made his point; I disagree with it. There is no question on that point.

On amendment 106, the aim of the publication requirements is to provide transparency to the taxpayers who fund the arrangements. The information published must therefore be relevant and accessible and lend itself to comparison across categories of public sector employers. Publishing the total number of union representatives is simpler for employers and accessible to the public. It is completely reasonable to assume that, where an employer values its representatives, it will know who they are and therefore their number. If taxpayers require comparison on a percentage basis to consider the publication fully, they can scrutinise the publication of the percentage of the total paybill that is spent on facility time. That figure will give a clear indication of how much resource in the organisation is used for facility time, which will provide comparison between organisations of different sizes.

Amendment 107 would replace the requirement to publish the total amount spent by an employer on facility time with the percentage of the total cost of facility time to the employer, including that funded by the trade unions. Amendment 108 would add that information to the publication requirements, but without also requiring the removal of the requirement to publish the total amount spent on facility time.

Together with the reserve powers in clause 13, the publication requirements deliver our manifesto commitment to tighten the rules on taxpayer-funded paid facility time. Where taxpayers fund facility time, as they do in the public sector, they deserve to have transparency about how much it costs. Providing the total cost will allow them to scrutinise spending, at both an employer level and a national or sector-wide level.

--- Later in debate ---

[Jo Stevens]

The Minister mentioned facility time to attend union conferences. I do not think that is correct, and I seek clarification from the Minister.

[Nick Boles]

If I have information to give the hon. Lady now, I will do so before I reach the end of this speech, but if I do not, I will write to the Committee before our next meeting so that the matter can be raised if there are further questions.

Including information that the trade union would need to calculate whether it pays for its own representatives does not improve transparency about what is happening with taxpayers’ money, because taxpayers are not funding the union’s contribution. If the trade unions want to supplement an employer’s publication by providing information of their own, we would welcome that move towards transparency. Our purpose is to ensure that taxpayers receive value for their money, and placing such a requirement on the trade unions would not meet that aim.

[Chris Stephens]

Surely it would benefit the taxpayer if public sector employers could demonstrate that trade unions made a contribution, whether to the office, to utilities or even, as I indicated, to the salaries of trade union reps who hold senior office in the trade union.

[Nick Boles]

I was very clear that we strongly encourage unions to make that information available where it is true. As the requirements on transparency for the taxpayer’s contribution to funding union duties and activities come through, I am sure unions will also want to present their contribution to those valuable roles, and they have every right to do so. However, it would not be right to place on taxpayers the requirement to prepare and publish that information. Ultimately, taxpayers do not pay that money to do the trade unions’ job of publication for them.

Finally—I hope this answers the question that the hon. Member for Cardiff Central asked about whether facility time has ever covered conference attendance—civil service transparency in the past few years showed that conference attendance by union officials was paid for by Departments in some cases. I will send the Committee the details of those cases, and I will circulate them to Members. There were cases of it in the past.

[Ian Mearns]

The provisions in the clause take us beyond the civil service. What happens in the civil service is different from what happens in other public sector areas.

[Nick Boles]

And the beauty of transparency is that it will reveal all, and if there are no problems and if nothing is unjustified, the public will be reassured and I will be entirely delighted. On that basis, I ask the hon. Members to withdraw their amendment.

--- Later in debate ---

[Stephen Doughty]

Excellent. I hope Hansard notes that the Minister nodded.

[Nick Boles]

I will be delighted to satisfy the hon. Gentleman’s curiosity.

[Stephen Doughty]

Excellent. I do not intend to press our amendments to a vote at this stage, but we may well return to them later. However, there are serious implications. We must not forget what we have discussed and the benefit that facility time can provide.

--- Later in debate ---

[Nick Boles]

Amendments 110, 47 and 48 are designed to limit the information published under our transparency regulations by excluding certain categories of trade union representative. I have already explained that the Government greatly value the work of learning representatives and health and safety representatives from trade unions. An employer must allow them as much paid time off work as is necessary or reasonable to perform their statutory functions, and we absolutely do not propose to change that rule. We simply want to ensure that the time that trade union representatives collectively spend on union duties and activities during working hours at taxpayers’ expense is justifiable and accountable, and that it represents value for money.

Clause 12 will enable Ministers to make regulations requiring public sector employers with one or more union representatives to publish information relating to facility time for those representatives. The information that employers could be required to publish includes the number of such representatives, such as learning and safety representatives, and how many of them spend a specified percentage of their time on their union role.

Reporting on facility time for learning and safety representatives is not new. The civil service has reported on paid time off for learning and safety representatives, together with general representatives, since 2013. The information on facility time that local authorities in England are required to publish includes the total number of staff who are union representatives, whether general, learning or safety representatives.

Amendments 47 and 48 are both designed to remove the requirement to exclude safety representatives from the information that is required to be published about facility time. Where an employer efficiently uses facility time for safety representatives, it is not unreasonable to expect the employer to know who those representatives are and how much of their time they spend on their union role. Where taxpayers fund the facility time of those representatives, they have the right to know how their money is being spent. We consider that all public sector employers should have to publish information about facility time for all types of union representatives, including safety representatives. They should not be required, as is proposed in amendments 47 and 48, to give taxpayers a less than full picture of their spending on facility time; they should be transparent about all of it.

Moving on to amendment 110, in the public sector paid facility time for a learning representative is in no way less of a cost to the taxpayer than paid facility time for a general representative or a safety representative. Not to include some costs of facility time based on the specialism of a particular representative would be misleading, and it would not deliver our intentions of giving taxpayers transparency about the facility time that they fund. Removing the requirement to publish information for specialist representatives, who are in a minority, would have a detrimental effect on the validity of the publication and be unlikely to save the employer significant time, if any.

Workers have a statutory right to be accompanied by a trade union official to a disciplinary or grievance hearing. That is a significant amount of trade union facility time, which is why we believe that it should be included in the publication requirements. Because we believe that that statutory right is right, and we have no intention of changing it, we want to understand the cost of the time that is involved in fulfilling it. Paid time off for a trade union official to attend such hearings is no less of a cost to taxpayers than any other category of paid time off for facility time, so there is no reason why it should be excluded from the publication requirements. Indeed, to exclude that cost would be misleading, because it would prevent taxpayers from ascertaining the true total cost of facility time in the public sector. Local authorities in England, and the civil service, have already agreed that that information should be published without exclusions for time spent attending such hearings. It would not be helpful transparency for some parts of the public sector to include some areas in their costs while others exclude them, because that would not allow taxpayers to make comparisons. I therefore ask hon. Members to withdraw the amendment.

[Chris Stephens]

We keep hitting a brick wall in terms of the Government’s attitude to this. They keep using the words “not justifiable”, but I believe that anyone undertaking duties as a safety rep or a learning rep is justifiable. What would be the issue on that basis?

[Nick Boles]

I have been trying to make progress, but I am stung by that remark. I have never claimed that the work of learning representatives and health and safety representatives is not justifiable—in fact, I have argued absolutely the opposite. If the hon. Gentleman believes that it is absolutely justifiable, why on earth does he oppose simply publishing the cost of it?

[Chris Stephens]

The Minister keeps using the words “not justifiable”, so we will press amendment 110 to a Division.

Question put, That the amendment be made.

--- Later in debate ---

[Stephen Doughty]

I do not intend to detain the Committee for long. The amendments are probing to understand fully what the Government mean by new section 172A(9), which is contained within the clause and would amend the 1992 Act. It would provide the Government with the power to extend the duty to publish information on facility time to an organisation that has

“functions of a public nature and is funded wholly or partly from public funds”.

What sort of organisations—private and voluntary sector—will the new reporting requirements encompass? I see no reason why a private corporation should be brought into this part of the Bill. The definition of “wholly or partly” is left open. Voluntary sector organisations and private bodies that engage in Government contracts want to understand the Government’s intent. Is it the intention to encompass all sorts of organisations or only a specified few? Our amendments ask that question and we suggest even removing the section. Amendment 99 would ensure that the proposed new reporting requirements on union facilities would apply only to public authorities as clearly defined by our amendment. I hope the Minister can clarify. However, the amendments are probing and I do not intend to press for a Division.

[Nick Boles]

I thank the hon. Gentleman for explaining the purpose of the amendment. The explanatory notes to the clause give examples of relevant public sector employees. The clause contains a power to provide that a person or body that is not a public authority but has functions of a public nature and is funded wholly or partly from public funds is to be treated as a public authority for the purposes of subsection (2) and is therefore subject to the publication requirements.

The proposed new section deliberately does not define what is meant by a public authority, because that term has a commonly understood meaning. However, the boundaries of that term can be uncertain. Therefore, subsection (9) is designed to enable us to deal with any cases in which there could be uncertainty that a taxpayer-funded body is a public authority, such as an academy trust.

That is an important point, so I take the opportunity to place it on the record that it is absolutely not our intention to catch, for example, private or voluntary sector providers of contracted-out public services. Nor is it our intention to apply the publication requirements to private individuals, companies, partnerships or the like, which amendment 99 seeks expressly to exclude from scope.

I hope that, now that I have given that explanation, the hon. Gentleman will be happy to withdraw his amendment.

[Stephen Doughty]

I thank the Minister for that clarification. I take it he means that, for example, a charity receiving a small grant—say £10,000—from the Government for a particular function would not be included in the legislation. Is that correct?

[Nick Boles]

I am happy to confirm it.

[Stephen Doughty]

That is very helpful. With that clarification, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Trade Union Bill (Sixth sitting)

Nick Boles Excerpts

Tuesday 20th October 2015 Public Bill Committees

[The Minister for Skills (Nick Boles)]

It is a pleasure to serve under your chairmanship again, Sir Alan. As we have heard in eloquent speeches from the shadow Minister, the hon. Member for Cardiff South and Penarth, and the hon. Member for Glasgow South West, amendment 90 and the rest of the amendments in this group aim to limit the geographical extent of the Bill. In the oral evidence sessions last week, we heard evidence from Roseanna Cunningham, the Cabinet Secretary for Fair Work, Skills and Training in the Scottish Government, and Leighton Andrews, the Minister for Public Services in the Welsh Government, about the collaborative relationship that these Administrations have with trade unions. That is, of course, laudable. There is absolutely nothing in the Bill that need cut across the positive relationships—the partnerships, as they describe them—between unions and Government in Scotland and Wales, any more than it will cut across the partnership and the positive relationship that we have with unions in relation to English matters.

The Bill is about ensuring that industrial action can go ahead only with a strong, democratic and recent mandate. It is about increasing transparency and accountability, both in strike ballots and in political funds. It is about protecting non-striking workers from intimidation and ensuring that unions take proper responsibility for picket lines. It is about securing transparency and value for money for the taxpayer. It is about creating an appropriate regulatory environment for unions. To me, these all seem to be reasonable objectives. How can we not want to apply these benefits uniformly across Great Britain?

Mike Emmott, senior policy adviser at the CIPD, who in general does not support the measures in the Bill, nevertheless put it eloquently when he told this Committee last week that it was appropriate for the Bill measures to be dealt with on a Great Britain-wide basis. He said:

“It is going to be quite odd for employers dealing with different rules applying in different jurisdictions, where there may be issues that go across the whole of the UK.”––[Official Report, Trade Union Public Bill Committee, 13 October 2015; c. 36, Q90.]

The Bill seeks to ensure that when the lives of commuters or patients or parents of school-age children are disrupted by strike action, that action is supported by a significant proportion of union members. In particular, we are seeking to protect the users of important public services from highly disruptive strike action that is driven by a small minority on the basis of an outdated ballot. The provisions of the Bill apply to the whole of Great Britain: to England, Scotland and Wales, to London, and to English local authorities. This is because all the provisions in the Bill relate to employment and industrial relations law, all of which are clearly reserved matters under the devolution settlements with Scotland and Wales. In Northern Ireland, on the other hand, employment and industrial relations are transferred matters; therefore, respecting the agreement that was properly reached with Northern Ireland, the Bill’s provisions do not apply there.

On that basis—that this is indeed a reserved matter—it is entirely in order for the Government to propose that the Bill applies to the whole of Great Britain. There are strong, practical reasons why employment law should apply across the whole of Great Britain. Under the devolution settlements with Scotland and Wales, Parliament devolved some responsibilities, while some remain reserved. Again, certain responsibilities are being devolved to local authorities in England and to the Mayor of London. None of the responsibilities that are devolved include employment law or industrial relations, so devolved matters are simply not at play.

The shadow Minister asked a number of detailed questions, which I will try to answer as best I can. Obviously contacts take place between officials in every Department here in London and officials in the devolved Administrations. I am not going to provide a running commentary or a list of them, but I can tell the hon. Gentleman that, in response to letters that the First Minister of Wales wrote to the Prime Minister on 9 September, the Prime Minister replied on 2 October. In response to letters from Roseanna Cunningham on 7 August and 9 September, she and I had a reasonably lengthy phone conversation on 8 October. I am always happy to speak to them and to discuss any concerns they may have.

The hon. Member for Cardiff South and Penarth said that there had been suggestions by members of the Welsh Government, the Scottish Government and other local authorities that they might refuse to comply with the provisions in the Bill should it become law. I say gently to the hon. Gentleman that it is quite remarkable to compare the number of times you hear people threatening not to obey a law in prospect—when it is being considered by Parliament and when there is some chance of affecting the outcome of Parliament’s deliberations—and the number of times when those duly constituted public authorities actually refuse to obey the law of the land and put themselves in breach. Let us cross that bridge when we come to it. I do not anticipate those rather wild and lurid threats being carried out—they are, after all, being made by institutions and individuals who oppose the Government politically and oppose the measures. They are, of course, entitled to use, in rhetoric, whatever arguments they like, but ultimately what they do is what will count.

Similarly, the number of times when it might be claimed that a legislative consent motion is required is very different from the number of times when it is actually required. When it is required is determined by the devolution settlement and by whether a matter is reserved or not. As Ms Cunningham herself has admitted, it is absolutely clear that, currently, employment law and industrial relations a reserved matters. There is absolutely no question about the full right of the UK Parliament to make laws that affect the whole of Great Britain on those matters.

[Stephen Doughty]

I appreciate that the Minister would not do anything other than defend the Bill as an entirely reserved matter, but does he accept that its provisions will have significant consequences for matters that are wholly or partially devolved to a series of Administrations around the UK? Yes or no?

[Nick Boles]

No, I do not accept that. The hon. Gentleman seems to suggest that minor changes in how individual employees pay a subscription to a particular membership organisation is a challenge to the ability of the devolved Administrations—the Scottish or Welsh Governments—to run their national health service or their schools. That seems ludicrous to me. It is, of course, a matter of employment law and it will, therefore, apply to people who work in public services that are, themselves, devolved, but the idea that it will prevent or interrupt the policies of those Governments towards their public services is to overstate the case.

[Stephen Doughty]

rose—

[Jo Stevens (Cardiff Central) (Lab)]

rose—

[Nick Boles]

I am happy to give way to the hon. Lady, but I do not want to have an endless ping-pong session with the hon. Gentleman at this point.

[Jo Stevens]

I refer the Minister to the letter of 14 October from the Welsh NHS Confederation to his colleague, the Minister for the Cabinet Office, which states:

“We feel that some of the proposals outlined in the Trade Union Bill could have a detrimental effect on this relationship”—

with trade unions—

“and potentially lead to unnecessarily challenging industrial relations in future…strike action in the NHS in Wales over the last decade has been minimal, despite significant organisational change and the introduction of significant changes to terms and conditions, so we do not believe that any additional measures to protect the public from strikes are necessarily required.”

Will the Minister comment on that?

--- Later in debate ---

[Nick Boles]

Yes. In a sense, the answer is the same. Everybody is entitled to say exactly what they think. I encourage it, I welcome it and we will always listen to any representations. We disagree. We believe that those people are overstating the case and that, when the Bill becomes law and the provisions are implemented—in Scotland and Wales as well as in England—it will not interrupt those very positive industrial relations, it will not interrupt those partnerships, and it certainly will not interrupt their ability to run their public services as they see fit.

[Chris Stephens]

There is a difference between employment law and industrial relations and how they impact on public services. I am curious about the Minister’s comment about the provision of public services, because political parties say how they will deal with industrial relations in public services as part of their manifesto commitments, whether for Scottish, Welsh or any other elections. Surely, those mandates have to be respected.

[Nick Boles]

We respect mandates, as I hope the hon. Gentleman will respect ours. I draw his attention to another example. The national minimum wage affects every single person who works anywhere in the United Kingdom. It is a reserved matter. It is something that this Parliament sets. I have not heard objections from the Scottish Minister—the very same Scottish Minister—saying that this is an egregious intrusion into Scottish matters and that somehow it is appalling that there is a national minimum wage. It is simply the case that we live in a system where some matters are reserved to the national—the United Kingdom—Parliament and other matters are devolved. The content of employment law and industrial relations is a reserved matter.

[Stephen Doughty]

rose—

[Nick Boles]

I think we have had enough, Sir Alan. I will give way one last time, because we are making incredibly slow process.

[Stephen Doughty]

To be fair, Sir Alan, I asked the Minister a number of questions. He has not answered the major question about whether the legislation applies retrospectively to contractual arrangements in the public sector in the devolved Administrations and across local government in England and elsewhere, and about what he believes the consequences will be. He makes out that this is all some slightly trifling matter that is not going to cause problems. Often, facility time, check-off and whatever else are written into contractual provisions and exist in arrangements that are made by devolved Administrations with their employees about their contracts. Will the legislation apply retrospectively, and what does the Minister believe will be the impact on the ability of Administrations to make contractual arrangements, as they have done before? Or is he admitting that the Bill interferes with their ability to do that?

[Nick Boles]

On the effect of the provisions on existing contracts, we have asked whether they are acceptable by international obligations and we are absolutely assured that they are. Again, I refer the hon. Gentleman to the national minimum wage. Its introduction had an impact on existing contracts, some of which therefore had to be revised to reflect it. This legislation will have no greater impact—in fact, rather less so—on existing contracts. We are confident that any effect it will have is entirely consistent with all the relevant legal framework.

[Chris Stephens]

Will the Minister give way?

[Nick Boles]

This is seriously the last time, because the hon. Gentleman has many that new clauses he wants to get to and I am just trying to help.

[Chris Stephens]

The Minister has been most kind, so I will ask just this question. The cost to public bodies of reissuing new statements of particulars and contracts could be considerable. Will the Government provide finances to the public bodies in that position?

[Nick Boles]

Sir Alan, you know as well as I do that if I were even to dare tiptoe on to the question of the financial settlement with devolved Administrations, there is literally a device implanted in my brain that would explode and decapitate me. I am not going to go there, however much pleasure it might give Opposition Members. [Interruption.] However, if the hon. Gentleman wants to write to the Chancellor—or to me and I can pass on the request—I will, of course, reply to his question.

If there are no further requests for interventions, I will conclude. The amendments in this group seek to use the Bill as a mechanism to carve out different arrangements in employment law and industrial relations for Scotland, Wales, London and English local authorities. Parliament has already determined that these matters are reserved. The amendments are an attempt to extend devolution by the back door and that is why we cannot accept them. I ask hon. Members not to press the amendments.

[Jo Stevens]

In opposing clause 3 and speaking in support of our amendments, I wish I had the faith in the legal advice that the Minister seems to have in his lawyers. I remind the Government of the evidence that we heard last week from Professor Keith Ewing, professor of public law at King’s College, London, about the Bill being incompatible with settlements in Wales and Scotland, which is entirely contrary to the position that the Minister has just asserted. The Committee will recall that Professor Ewing said:

“The Government are walking, almost blindfolded, into a major constitutional crisis around the Bill. That constitutional crisis could be as explosive for this Government as the poll tax was for the Thatcher Government in the late 1980s and early 1990s. This is a big, big problem, and I am not sure that people have really thought through the consequences.”––[Official Report, Trade Union Public Bill Committee, 15 October 2015; c. 129, Q346.]

Not having thought through the consequences is a recurrent theme in the Bill. I appreciate that the Government seem to have struggled to give examples of good industrial relations in England. Almost every example of industrial action and dispute that they have referred to has involved employees in London, which I would suggest is a reflection on the Mayor of London rather than on current industrial law.

--- Later in debate ---

[Julie Elliott]

It is a pleasure to serve under your chairmanship once again, Sir Alan. I want to speak in support of the amendments in the names of my right hon. and hon. Friends concerning the differences between “essential” and “important” public services. I totally agree with the comments from my hon. Friend, who has outlined the problems very clearly.

As written, these clauses unworkable in practice. Everything I have said so far in this Committee has been about the practicalities of the Bill and that is really where I want to start today, but before doing that, I want to talk about the definition of essential public services. It is a well established, well trodden path: everybody understands what it is. The Conservative manifesto and Her Majesty’s Gracious Speech both talked about essential public services. During our consideration of the previous group of amendments, the Minister said, “Of course, we respect the mandate of the commitments made in manifestos.” If that is what he believes, this flies in the face of it and is an absolute contradiction, so I would like to hear his comments on that matter.

The TUC is a representative body of 52 trade unions, most of which are not affiliated to a political party, representing almost 6 million people—the TUC expresses the views of a substantial body of people. On pages 2 and 3 of its written evidence, the TUC mentions that the Employment Lawyers Association

“has warned the government against introducing thresholds to services not covered by the ILO definition of ‘essential services’.”

The ELA clearly recognises that there will be problems with the definition. Page 3 of the evidence states:

“The TUC is concerned that the Bill does not define ‘important public services’. Instead the government plans to specify which workers will be covered by 40 per cent threshold in regulations. MPs will therefore have limited opportunity to scrutinise and amend new legislation which restricts the democratic rights of millions of UK workers.”

In oral evidence, Dave Prentis, the general secretary of the largest public sector union, Unison, talked about life and limb cover; but in their oral evidence some of the people who support the Bill did not seem to understand either what life and limb cover is or that it even exists. Dave Prentis’s evidence is highly pertinent. Once again, I feel that the Government are heading blindly into legal action. Recklessly changing the definition will cause major problems and ultimately could restrict, by the back door, the right of workers in the private sector to take what I regard as legitimate strike or industrial action.

The public sector has changed out of all recognition over the past 20 years. It now has substantial organisations, whether in local government, the national health service or other areas. There is a melange of different constructs, whether they are outsourced by contracts, let by bidding, that contain clauses with which some of this legislation might clash, or whether they are in arm’s length management organisations. Will people in cleaning services, for example, be deemed as essential or important, or will they be deemed as not important? Different cleaning services in a hospital might be treated differently. Someone who cleans a reception area might be treated differently from someone who cleans operating theatres. All of those things will come into the mix at every stage of every different industrial dispute. The cost implications have not been thought through.

It would be much safer, and would practically avoid the risk of litigation, if we stuck to the term “essential public services.” The Conservative Government have a mandate for that from their manifesto commitment and from Her Majesty’s Gracious Speech. The term is well defined, unlike the alternative in the Bill, which will be incredibly difficult for MPs to scrutinise and will restrict the right of many people to take industrial action. Almost inevitably, the result will be litigation, which will cost taxpayers money. Every time the Government go to court when they have not thought proposals through—we saw many instances in the previous Parliament, particularly in the energy sector, where the Government lost cases—the cost of that litigation returns to the taxpayers, who fund Government court cases. I urge the Government to consider these proposals carefully. Although we disagree with the Bill’s substance, these amendments would at least make the clause workable. Also, I look forward to hearing the Minister’s comments on his party’s manifesto.

[Nick Boles]

I thank hon. Members for their contributions. The amendments strike at the very heart of the Government’s objective in introducing a 40% threshold for strikes in important public services. I remind the Committee why we are introducing this measure. Nowhere is the impact of strike action more severe than when it takes place in important public services. The reason for that, and it is a thread that runs through all of the sectors listed as important public services, is that broadly—I accept it is not the case in every single detail—each of those services, as public services, operates as a monopoly in the lives of those who rely on it as users. That is not to say that, in time, people cannot put their children into a different school, secure an appointment with a consultant in a hospital trust outside the area in which they live, or find other ways to make the journey that they do every single morning and evening to and from work. It does mean, however, that when strikes happen, it is impossible for the vast majority of the British public who rely on those services to secure that alternative provision within public services. It goes without saying that the Border Force is itself a public monopoly—quite rightly so—and although nuclear decommissioning may involve contractors, thankfully we do not have competing nuclear commissioning regimes.

Where people and businesses rely on the services every day and where they have no choice of an alternative service provider, we believe that those services represent the important service sectors where the additional requirement of the 40% threshold is justified. That threshold ensures that strikes affecting services in those sectors can go ahead only when a reasonable level of support has been secured by the trade union. We are not banning strikes; the legislation is about making sure that enough members support the proposed action before it can go ahead.

The six sectors set out in the Bill as being subject to the 40% threshold have been chosen precisely because they are those where strike action has the potential to have the most far-reaching consequences for a significant number of people. Opposition Members discussed the difference between important services versus essential services. They are right that the ILO defines “essential services” and that that is an accepted definition, but it does so for the purposes of making it clear that it is therefore allowable to prohibit the right to strike in those services. The right to strike can be entirely prohibited in the sectors that the ILO has deemed to be essential, which include some but not all of the same sectors that we have listed—for example, firefighting services, the hospital sector, air traffic control, public or private prison services, electricity services, water supply services and telephone services.

[Stephen Doughty]

Will the Minister give way?

[Nick Boles]

No, not at the moment. I will make my argument, and then I will be happy to take as many interventions as hon. Members wish to make.

Because of the ILO’s definition of essential public services as those where it is permissible to prohibit the right to strike we decided to clarify that clause 3 proposes not a prohibition or a strike ban but simply a threshold of support for a strike. That was intended to clarify that the services listed are not the same as those covered in ILO definition, but are important public services. To be clear, our manifesto named the four most important of those services to which clause 3 applies. We have an absolute manifesto mandate for the inclusion of fire, health, education and transport services. Since then, based on cross-government consultation, we have added border security and nuclear decommissioning. If Opposition Members want to argue that those two sectors are not important public services on which the public have good reason to rely, they are welcome to have a go. I accept that the sectors were not listed in our manifesto, but I feel pretty sure of what the public’s view will be of whether they should be included in the definition of “important public services”.

--- Later in debate ---

[Jo Stevens]

Can the Minister tell us when those regulations will be published?

[Nick Boles]

I have consistently made it clear that it will be before the Bill receives Royal Assent. I cannot give the hon. Lady the precise timing. We do not know the precise timing of the Bill’s further parliamentary stages, because that is not entirely within our gift, but the regulations will come forward before the Bill receives Royal Assent.

[Stephen Doughty]

The Minister has given a very convoluted explanation of why the wording was changed from “essential” to “important” public services, which does not bear scrutiny. Was it because he was worried that if he used the phrase “essential services”, it would be subject to legal challenge? On the point that my hon. Friend the Member for Cardiff Central has just made, will the Minister commit to publishing the regulations before the Bill leaves the Commons and goes to the other place? It is important that the public see them.

[Nick Boles]

It is always interesting to describe an argument one disagrees with as “convoluted”. My argument was not convoluted; the hon. Gentleman just disagrees with it. His argument was not convoluted either; I just disagree with him. I have made clear when the regulations will be brought forward—before Royal Assent—and I do not think I need to say any more than that.

I turn to amendment 4. In the modern economy, many people work in roles that encompass several different tasks and responsibilities, so it is likely that some workers who contribute to the delivery of important public services do not do so for 100% of their time. None the less, if such workers were absent during strike action, their absence would undermine the service. For example, a deputy headteacher might teach for only part of their time, spending the rest of the time on planning and management. That is why the Government propose to include all those “normally engaged” in important public services within the scope of the 40% threshold. We believe that that phrase is easy to understand and correctly encompasses those whose absence would adversely impact the public service.

On amendment 6, we have included so-called ancillary workers in the scope of the 40% threshold because they are often central to the operation of the important public services cited. For example, while hospital cleaners and rescue centre call staff are not front-line surgeons or firefighters, their work is critical to ensuring that front-line staff can deliver the service. Their absence can make the difference between the ability to run a service and it shutting down during the period of strike.

As I said, the Government consulted on these issues over the summer, and we are currently analysing the responses. That will help us in preparing the regulations, and I will take all views into account as we develop the secondary legislation to implement the detail of the threshold. For those reasons, I ask the hon. Gentleman to withdraw amendment 4.

[Stephen Doughty]

Although the Minister gave his explanation in funny terms, I find it unbelievable, quite frankly. It is a very convoluted reasoning. The reality is that the ILO defines essential services in a very restrictive way because the international legal consensus, and indeed the international human rights consensus, is that the right to strike and to freedom of association should be restricted only in very narrow cases. That is why it is a tight definition. It is intriguing that the Government have chosen to move away from that. They clearly want to expand the restrictions much more widely. I have already given the example of Germany, where such provisions would be unconstitutional.

I must take issue with the Minister’s unwillingness to give us a commitment on the publication of the regulations. He said that there was a consultation. Like all consultations on the Bill, it took only eight weeks rather than the usual 12. All the consultations were done over the summer to frustrate the input from sectors such as teaching, as many of the profession’s union members are away from school at that time. It is an odd situation, and a serious one for Parliament, that we are discussing severe restrictions on the exercise of people’s democratic rights, yet the Minister is saying, “Trust me. We’ll publish them. They’ll be all right. It’ll be fine.” The regulations should have been published alongside the Bill so that we could see what the Government intend. Is the Minister going to publish them 20 minutes before the Bill gets Royal Assent, if we ever get that far? That is simply not good enough, and I would like the Minister to consider publishing the draft regulations. We need to get some clearer intent before the Bill leaves the Commons, and certainly before it gets into the other place. For that reason I am keen to test the will of the Committee on amendment 5.

--- Later in debate ---

[Jo Stevens]

I rise to speak in opposition to clause 4 and in support of amendments 14 to 19. From reading the clause, the Government appear to think that trade union members are not capable of understanding what they are voting on in a ballot on industrial action. That is a patronising attitude to working people, who do not lightly take industrial action; they consider carefully what they are voting for. They understand the issues. There is not one single shred of evidence of union members saying that they did not understand what they were voting on or why.

The Government propose changes to the law that will turn an industrial ballot paper from a succinct statement with a yes or no question to something resembling a legal disclaimer. The Chartered Institute of Personnel and Development has said that the proposals are “counterproductive”. Employers’ lawyers have said that the proposals are vague and unworkable and that they will lead to legal challenges and expensive litigation. No one wants that—apart from the Government, it would appear.

As my hon. Friend the Member for Cardiff South and Penarth said, the purpose of the proposals appears to be to encourage court cases by employers. Witnesses to the Committee have said that they are not about information for union members, but ammunition for employers. Looking at the detail, the ballot paper must include

“a reasonably detailed indication of the matter or matters in issue in the trade dispute”.

What does that mean? It has been criticised by lawyers across the spectrum for being so uncertain as to be meaningless. What is “reasonably detailed”? It is an oxymoron and it is contradictory. How will both sides of industry know whether something is detailed enough to be “reasonably” detailed or regarded as too detailed? Unions and employers will be in court every single time. What is “an indication”—a nod or a wink? This is not the language of statute, and I wonder whether it might come from the Prime Minister’s nudge unit. Anyone with any experience of industrial relations will know that the question of what is in issue in a dispute is often a matter of disagreement. This wording will further add to legal challenges.

The next requirement imposed by the Bill is to state

“the type or types of industrial action”.

What does that mean? We heard in evidence to the Committee that even Government lawyers themselves cannot explain it. The current definitions of “strike” and “action short of a strike” have been clarified by case law and amendments to statute over the years. They are now clear and well understood, so what are the “types” of action the Bill refers to? We are told that they include an overtime ban, for example, and work to rule, but those are not legal terms of art. Again, this will lead to expensive litigation and legal wrangling in the courts.

Finally, the union must state on the ballot paper

“the period or periods within which the industrial action or…each type of industrial action is expected to take place.”

Why should a union be required to state that information at the stage of the ballot, weeks before any action could lawfully take place, when they must in any event give notice of dates of action after the ballot is completed and before action takes place? The intention behind every single one of these provisions is to set legal traps for unions so that employers can run off to court and get injunctions to stop legitimate action.

Employers, however, do not want the provisions either. They fear the consequences. Employers’ lawyers have said they are concerned that unions will have to draw the descriptions on the ballot paper as widely as possible to give themselves legal protection. Unions will have to include every possible type of action they might take and set out every day on which they might take each type of action.

What is more, employers’ lawyers fear that to avoid legal challenges, unions will have to stick to every single detail spelled out in the ballot paper. They will not be able to resolve any issues in the dispute unless all issues are resolved, otherwise they will face legal challenge. They will have to take every type of action specified and on every single day specified, otherwise they will face legal challenge. How on earth is that supposed to reduce the number of disputes that take place? It will simply increase them.

Disputes will escalate. They will become more entrenched and more difficult to resolve, all because of these changes. That is why the CIPD says that the proposals are a “significant step back” that will “harden attitudes”. I invite the Minister to withdraw them, but if the Government persist with these counterproductive proposals that no one wants, they should be amended as we propose.

[Nick Boles]

I am pleased that the hon. Lady gives me the opportunity to set out in more detail what sort of information we expect unions to include on the voting paper. I fear this may take a little time, but I want to address all the amendments tabled and why we will resist them.

I will start with first principles. We want unions to be absolutely clear with their members about what they are being asked to vote for, in order to ensure full transparency in any industrial action ballot. It is clearly in the interests of union members, as well as employers and the wider public who are affected by strike action, that those being asked to vote for such action can make a fully informed decision about whether to back it.

I remain concerned that merely requiring a trade union to state the trade dispute without requiring any further detail, as suggested in amendment 14, would not meet the objective of enabling members to make a fully informed decision. It would only require a very broad statement. In reality, it will in most cases mean that members have no more information about the dispute than they have from wider communications. It does not provide enough clarity for union members to determine whether they choose to support industrial action. That cannot be right or democratic.

[Chris Stephens]

Will the Minister give way?

[Nick Boles]

I will continue for a second and then give way to the hon. Gentleman; I owe him one, because I did not see him trying to intervene earlier.

I have a couple of actual strike ballot papers in front of me. They are quite hard to get hold of, so I have not got a huge number. On one, the only statement on the paper was “impact of redundancies”, which did not clarify in which workplace, which group of employees was affected or when the strike was proposed. That ballot paper provided a very vague, short description. Another ballot paper provided a vague but incredibly broad statement about

“adverse changes to pensions, workload, conditions of service, including pay and pay progression, and job loss.”

Neither statement is particularly helpful to those voting on the ballot because not enough information is given about when that dispute would be resolved, so that is not obvious to the person voting. Being told the location of the site of the affected workers would not necessarily help members to know what matters are at issue, and neither would knowing that the dispute is about pay, for instance.

Let us not lose sight of the potential wider benefits of the proposed change. As now, the employer will receive a copy of the voting paper, so including better information about why the industrial action is proposed should have the added effect of helping to eliminate any misunderstanding, which can creep in in such circumstances, between unions and employers about exactly what issues remain in dispute. In turn, that should facilitate employer discussions with the trade union about how the dispute might be resolved, where possible without recourse to industrial action.

Turning to amendment 15—

[Chris Stephens]

Before he turns, will the Minister give way?

[Nick Boles]

Of course. I was ploughing on and I did not mean to forget the hon. Gentleman. It is only because he is outside my peripheral vision—

[Ian Mearns]

You should take the blinkers off, Minister.

[Chris Stephens]

If the Minister wants to access other ballot papers, he should join a trade union. In my experience, when a ballot paper is issued, the trade unions are allowed to insert a sheet of paper that sets out fully the issues in the trade dispute, so why is the clause necessary?

[Nick Boles]

I would simply say that if they all do that, and I agree that that practice is welcome, it should hardly be difficult just to provide a few more details on the ballot paper so that when somebody’s vote is decided, it is clear what they have voted for or against. I promise Opposition Members that from now on there are no blinkers on this Minister, as I am sure that they will be happy to admit.

Let me explain why we have used the words “reasonably detailed”, because the hon. Member for Sunderland Central in particular thought that was a mistake. That specific form of words is used in clause 4 to take into account the particular circumstances of each trade dispute. If there is any more detail that a union could reasonably give on the ballot paper, the requirement is not satisfied. For example, if the issue is identified simply as “pay”, it may well be right to say that there are further details that the union could have included. Those details might include which year’s pay offer is in dispute, and which employees are covered by the offer. Again, that links back to our overall objective to ensure that unions provide clarity to their members about what they are being asked to vote for so that there is full transparency in any industrial action ballot.

We think it is much more helpful to union members if a trade dispute that affects them in different ways is articulated in sufficient detail so that everyone knows the point on which they are being asked to make a decision on industrial action and how each individual is affected by the trade dispute. However, we do not want to put unnecessary burdens on unions by asking them to include a long and detailed account of the trade dispute. That would be onerous and would dilute the very clarity that we are seeking to provide. That is why the clause does not require a “reasonably detailed” description of the trade dispute. It is about balance, and the Bill as currently drafted best achieves that.

Amendment 16 would not assist members to understand what type of action they are voting for. That is particularly important because there is no definition of action short of a strike. If we do not require a trade union to state on the voting paper what specific type or types of action it is proposing, a member will not know what action he or she is being asked to back. Even stating that the proposed action is action short of a strike does not help members to make a sufficiently informed decision, because there are various types of action that amount to action short of strike. Just using that phrase will not help members to understand what they are voting for. For example, a member may support industrial action that amounts to an overtime ban, but not a period of work to rule. If the voting paper does not specifically state which of these actions the union proposes its members take, how will they know how to vote?

Having said that, I appreciate the point the hon. Gentleman made about there being a degree of uncertainty at the stage when the union is drawing up the voting paper about how the negotiations will continue to play out and therefore what action the union might subsequently take. Nevertheless, if the union has reached the stage at which it is asking its members to support a ballot for industrial action, it must surely have in mind a plan for such action. All we are asking in new section 229(2C) is that the plan should be disclosed to the union members. I do not believe that is unreasonable.

[Tom Blenkinsop (Middlesbrough South and East Cleveland) (Lab)]

The Minister gave work to rule as one example of action short of striking. Can he define what work to rule is?

[Nick Boles]

My understanding is that it is working to the contractually committed hours and not being willing to work beyond those or in a different place, perhaps, than contractually committed. I am sure I can provide the hon. Gentleman with the legal or commonly accepted definition, but that is my understanding.

[Tom Blenkinsop]

Would the Minister apply that definition to all workplaces?

--- Later in debate ---

[Nick Boles]

I do not think it is my job to apply it to any particular workplace.

[Seema Kennedy (South Ribble) (Con)]

Does my hon. Friend agree that the clause is about giving certainty to all involved in business: the employers and the union members, the people who are voting? I draw the Committee’s attention to the submissions of Dr Marshall and, in particular, David Martin, who said:

“Communication with the workforce is fundamental”.––[Official Report, Trade Union Public Bill Committee, 13 October 2015; c. 16, Q42.]

The clause is a sensible evolution in the legislation and is just about ensuring clarity for all involved.

[Nick Boles]

I thank my hon. Friend for her intervention; she is absolutely right. In a sense, the hon. Member for Middlesbrough South and East Cleveland has, perhaps unintentionally, made my argument for me—I do not have to understand what is proposed on every single ballot paper; I am the mere Minister in this. The people who have to understand it are those being asked to vote on whether to strike—which, if they choose to, will have huge direct personal effects on those being asked to strike, as hon. Members have pointed out—or being asked to co-operate with an overtime ban or anything else. It is they who need clarity about what is being proposed, and that is all we seeking to ensure.

[Tom Blenkinsop]

Will the Minister give way?

[Nick Boles]

I am not giving way again; I need to make some progress.

On the period for proposed industrial action, a union member may be fully supportive if he or she knows that it would take place in late November or early December, but not if it was to take place, say, over the Christmas period. Trade union members may want to consider the proposal in relation to their personal circumstances, as well as their work. Amendment 19 would simply not meet that objective, because it would preserve the current situation, in which there is no requirement whatever to provide any information in the voting paper to union members about the timing of industrial action.

I have similar concerns about amendment 17. Simply knowing whether industrial action is to be continuous or discontinuous, without any further information about timing, does not help a member to understand when such action might take place. Indeed, I doubt whether the words “continuous” and “discontinuous” in the context of industrial action mean very much to a lay person. Surely it is the time period that is the key to ensuring that members have clarity about when action is due to take place. Of course, it is also important that employers know whether the proposed action will be continuous or discontinuous. That is why the notice of industrial action, which a union must provide to an employer under section 234A(3)(b) of the 1992 Act before taking such action, must include a statement to that effect. Crucially, however, that notice must also contain details about the intended dates for such action. Indeed, that is its purpose: to tell the employer exactly when the action will happen. That is in contrast with proposed new section 229(2D), which requires a union only to provide an indication of when the expected industrial action would take place, not a specific date or set of dates.

That brings me to amendment 18. To require a union to state whether the industrial action is intended to be continuous and to state the intended dates would be to require it to specify a particular date on which the action is to start—for example, from 15 October. That would be very restrictive; indeed, it is much more prescriptive than the requirement under clause 4, which, in this example, would just be to indicate the period of industrial action as being in, say, October. That would give a union the flexibility to start such an action on, for example, 1 October, 15 October or 25 October, and for it to last for, say, one day, one week or longer—subject, of course, to the union providing 14 days’ notice to the employer and the action taking place within the four-month time limit of the mandate.

I have even more concern about a union’s ability to meet the proposed requirement to specify that the action is discontinuous, together with the intended date for such action. That combination of words would effectively require a union to state up front and before it has even secured a mandate for action the precise dates on which such action is planned or intended. It would be much more difficult for a union to predict such dates so far in advance, and they may well turn out to be unreliable. For example, if the union finds that it does not want to take action starting on or specifically on those precise dates because negotiations are ongoing, it would no longer have a ballot mandate. The dates would need to be reliable or the union would risk misinforming members. Making a union set out its plan in such detail, so early, means that the dates would be very likely to change.

Having said that, let me be clear: it is entirely reasonable to require a trade union to specify that the action is discontinuous, together with the intended date for such action, at the point when it is serving notice of intended action to the employer under section 234A(3)(b) of the 1992 Act, as is the current position. However, to suggest that a union should articulate the precise dates on which it will take particular action so much earlier in the process is an entirely different proposition, and one I cannot support for the reasons I have outlined. I therefore urge the hon. Gentleman to withdraw the amendment.

[Stephen Doughty]

The debate has been interesting. As the Minister will appreciate, the role of the Opposition is to table amendments to expand on a series of issues, not necessarily to push them all to a vote. The debate has been helpful in eliciting from the Minister various responses about the intent behind clause 3.

I listened carefully to what my hon. Friend the Member for Cardiff Central said about the concerns of the Chartered Institute of Personnel and Development and employers’ lawyers relating to the clause. I agree with her that, in many respects, the clause, the Government’s intent and, I would gently say, some of the Minister’s comments can be seen as patronising to trade union members. The suggestion that there is widespread ignorance about the disputes on which members are balloted and that they are somehow under the Jedi powers of their union steward masters is a fantasy. If Members speak to any ordinary trade union member or person affected, they will find that people are very clear: they know what issues are affecting their pay and pensions.

--- Later in debate ---

[Stephen Doughty]

I can think of all sorts of other examples. Again, the implications of this do not seem to have been properly thought through. Will the Minister briefly comment on who has requested this? Who has said they want this? Have employers, businesses and public servants up and down the country been banging on the Minister’s door saying, “We want this information out there in the public domain,” as the Bill would require?

This would not only add to the regulation of trade unions and the implications for employers; new powers for the certification officer would inevitably be followed by additional costs. The wide extension of the certification officer’s power will have significant fiscal implications. What assessment has the Minister made of the likely cost implications of the certification officer having to gather this additional information? Will it come from existing budgets, will new moneys be provided or will it be cost-neutral?

In any other sector, I am sure the Government would attack such burdensome regulations as needless officialdom that should be done away with in a bonfire of bureaucracy. Does the Minister agree that legislation affecting trade unions should be held to the same standards?

[Nick Boles]

There the hon. Gentleman goes again with his blood-curdling language. I have been described as introducing “an executioner” of trade unions. The simple truth, as ever, is a lot duller: we are just trying to beef up the certification officer’s role so that it can be a modern regulator of trade unions.

The certification officer will have no greater and no more expansive powers than other regulators—indeed, rather less in some examples. We also want more transparency for everyone about industrial action undertaken by unions. Effective regulation and transparency help to improve confidence in how institutions are run, which can only be a good thing. It is slightly surprising to hear the hon. Gentleman and his colleagues argue against transparency, as if somehow the public interest is better protected by keeping things secret. That is a surprising position for the Opposition to take.

We will discuss the detail of the certification officer’s role later, and I do not want to anticipate that. This debate is about the information that trade unions are required to provide to the certification officer about industrial action. That is an important requirement, because the timely provision of good quality information is a key component of ensuring effective regulation. It gives more confidence to those affected by industrial disputes, which is of course why trade unions are already required to provide certain information every year to the certification officer. That is set out in section 32 of the Trade Union and Labour Relations (Consolidation) Act 1992 and annual returns submitted to the certification officer are already available for public inspection. I do not remember any proposal coming forward from the previous Labour Government to alter the fact of those annual returns or of that availability. If industrial action is taken during the period of the return as a result of a successful ballot called by a union, the clause requires that union to include certain information about the action in its annual return to the certification officer.

[Jo Stevens]

Can the Minister tell the Committee who exactly has asked for the provision? We are not aware of anyone, neither employer nor union, who has asked for it.

[Nick Boles]

I have news for the hon. Lady: the Government sometimes act because they have received a mandate—and a majority—at a general election on a clear proposal in their manifesto. That clear proposal was to reform the role of the certification officer. The Government have also, during the term of the coalition Government, had a longstanding commitment to transparency in the public interest and we are not ashamed to continue that in the clause.

The union will need to provide details about the nature of the dispute, the nature of the industrial action and when the action was taken, as specified by clause 4. One of the ways in which we seek to achieve a more effective role for the certification officer is by ensuring that he has full information about any industrial action proposed and taken by a union. We want to achieve that through increased transparency in the annual return to the officer. The clause also requires a union to provide the certification officer with details of the outcome of any ballot for industrial action, if the union has called a ballot during the period of the annual return. That requirement applies whether the ballot was successful or not.

Accurate information presented in a transparent manner about industrial action proposed and taken by a union helps to demonstrate to union members, and to the wider public, that unions are properly regulated and fully accountable for their actions. I commend the clause to the Committee.

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

--- Later in debate ---

[Stephen Doughty]

My hon. Friend speaks with a great degree of legal experience and expertise from her previous career. That is indeed the case, and it is a very important point to make. I believe this is just a case of providing opportunities to undermine, rather than seeking resolution and negotiation in a consensual manner. It again provides the potential for protracted disputes, which means that amicable settlements will be more difficult to achieve. If the Government were serious about promoting positive industrial relations, dialogue, agreement, conciliation and arbitration, they would not simply be extending time, which is already extensive, on the basis that people will be shocked if there were a tube strike tomorrow. People know well in advance if such things are happening, and it is deeply patronising to suggest otherwise.

[Nick Boles]

We recognise the important part that negotiations play in reaching resolution of disputes between unions and employers. Even where such negotiations have been ongoing for some time, reaching the point at which a union serves notice of an intention to take industrial action signals to an employer that the matter has now escalated to a critical level. With a valid ballot mandate having been secured—which in itself is a prior signal that the matter is escalating—serving notice is the last stage in the process before a union can take industrial action. It is therefore also the employer’s last opportunity before the industrial action takes place to reach a negotiated solution. This is when continuing dialogue between the parties becomes even more important.

We recognise that, which is why the clause allows a longer period of time during which the trade union and the employer can discuss and strive to reach an agreement on how best to resolve the dispute without recourse to industrial action. That is why in clause 8 we are also removing the need to take some industrial action within four weeks of a ballot. A negotiated settlement is best for the employer, the public, the union and its members, and we are keen to promote every opportunity for such discussion to take place.

[Ian Mearns]

Does the Minister accept that intransigence and the refusal to negotiate in a proper manner by employers is also a form of industrial action?

[Nick Boles]

I am realistic; I understand that there are times when unions feel they have no option but to take industrial action. As I have said, nothing we are doing is stopping that, but let us not lose sight of the scale of disruption that strikes can cause, not only for employers, but for members of the public. It is only right that those whose lives are affected are confident that the legislation provides every opportunity to avoid such disruption, if at all possible. Providing a longer period of time for the notice of the intention to take action is an important part of that process.

Some unions must agree with that, because there are instances where they have chosen to give two weeks’ notice voluntarily, such as in October 2014, when nursing staff provided more than three weeks’ notice of a half-day strike. It is only fair that employers and members of the public who rely on services have the certainty of having a decent amount of time to make contingency arrangements and that both parties to a dispute have more time to continue negotiations. I therefore commend the clause to the Committee.

--- Later in debate ---

[Stephen Doughty]

Absolutely, and, combined with the other measures by which a vexatious employer might wish to frustrate the balloting, the wording and everything else that we have already discussed, that creates a very difficult set of circumstances that will fundamentally render illusory the right to strike, to freedom of association and to withdraw labour in furtherance of a dispute. I hope that the Minister will comment on that.

[Nick Boles]

As we draw towards the end of the first day of line-by-line consideration of the Bill, we are reaching a point where the shadow Minister could do my bit as well. He could make my arguments: he anticipates them and knows exactly what I am going to say before I say it. It would be vastly to the entertainment of the Committee were we to allow him to do so, but I might be fired.

We simply want to ensure that industrial action is based on a current mandate on which union members have recently voted, and that those members are still working for the employer where the industrial action is proposed. It should not be a legacy mandate based on a vote undertaken many months or years previously.

I would not want to disappoint the shadow Minister by not doing as he anticipated and reminding the Committee of certain recent strikes that caused great disruption to members of the public but were based on very old mandates. There were strikes by the National Union of Teachers in July and March 2014 that were based on mandates from June 2011 and September 2012. In October 2013, there were strikes based on a mandate from November 2011. It just is the case that there is current practice of holding strikes based on very old mandates. That is what we are seeking to address with clause 8.

We specify that a ballot mandate has to have an expiry date, which both frees employers from the current situation where strike threats are made for which the original balloting took place some years earlier and removes the resultant long periods of uncertainty, not only for employers but for union members and members of the public.

[Stephen Doughty]

For the benefit of the Committee, will the Minister clarify where the four months come from? Why four months?

[Nick Boles]

In deciding how long the mandate should last, it is important that we strike a balance. As I have said, we must remove the uncertainty, which can currently last years. That must be balanced with the need to provide a reasonable amount of time for constructive negotiations to take place. Of course, I am delighted to see that, through the amendment, the Opposition are open to the idea of testing the concept of a time limit to the mandate. The question, as the hon. Gentleman has just asked, is why we have decided on four months, rather than the 12 months that he proposes.

We consider that a four-month period balances the objective of, on the one hand, ensuring that strikes cannot be called on the basis of old ballots and, on the other, allowing sufficient time for constructive dialogue to take place. A period of 12 months would tip the balance too far in favour of the unions to the detriment of everyone else—not just employers, although employers would still have the threat of strike hanging over them for a considerable length of time. Union members should have certainty on the period during which they might be asked to take industrial action. That is particularly important given the consequential effect on their pay. Twelve months is simply too long to expect people to live with such uncertainty. If members have moved jobs, it might not even be the same group of people affected.

According to the Chartered Institute of Personnel and Development, annual staff turnover in 2014 was 13.6%, which means that after 12 months, on average, nearly 14% of the workers who voted for a strike might no longer be in the same job. That must call into question whether the union has a truly valid mandate.

[Ian Mearns]

The Minister is quoting statistics that cover industry and employment in the UK, which includes people who are, by design, on short-term contracts where turnover is built into the system. By the nature of their employment rights, not having two years to protect their employment, such people will probably not go on strike in the first instance. The statistic is being skewed by a group of workers who will have no effect on the likelihood of a strike in another instance.

[Nick Boles]

Let us not forget that people’s perceptions of a dispute can change over time. It is only right that unions check whether industrial action still has the support of their members. Leaving it for a year before a union checks that it still has a mandate is simply too long. In fact, any of the circumstances about strike action are likely to have moved on after four months.

I think we are all agreed that constructive dialogue is important. Negotiation is key to resolving disputes satisfactorily. A four-month time limit on the ballot mandate should not impact on the parties’ ability to negotiate a settlement. Indeed, negotiations may well be more focused when an employer has greater clarity about the trade issues in dispute and where a union has a strong and recent mandate for industrial action.

[Chris Stephens]

During the course of a dispute, trade unions will be contacting their members and having workplace meetings on every part of the process. I do not get why four months is necessary. The Minister seems to suggest that trade unions do not contact their members during that four-month period.

[Nick Boles]

Obviously we disagree on this, but the fact is that this is not only about union members—some of whom may have moved on or changed their mind—although they are incredibly important to the process. It is not only about employers, although they are also incredibly important to the process because they can lose a great deal of money and perhaps even customers as a result of strike action. This is also about members of the public who rely on services and need to know that there might be a bus strike if a ballot in support of strike action took place three months ago. No one will remember the strike ballot and its result if the period was 12 months.

Let us not forget that, crucially, the period of four months is not the only period during which negotiations will take place. Indeed, such negotiations should have started long before a union seeks a ballot mandate. Let me also be clear about what the clause does not do. It does not prevent strikes. If a union has legitimately secured a clear, decisive, democratic ballot mandate for industrial action from its members, and the dispute cannot be resolved by negotiation, that union’s members can strike. It also does not prevent unions from seeking a further ballot mandate if the dispute is ongoing when the ballot mandate expires. New subsection (1A)(a) specifically provides for that. I therefore ask the hon. Member for Cardiff South and Penarth to withdraw the amendment.

[Stephen Doughty]

While I sympathise with some of what the Minister said, I fundamentally do not see the argument for a four-month period. This is a matter of interpretation. Twelve months provides a much better period; four months is far too short and will encourage disputes. Indeed, as many Members have said, it could encourage wildcat action, which we certainly would not condone and I am sure the Government would not want. With that in mind, I seek to press the amendment to a vote.

Question put, That the amendment be made.