Trade Union Bill

Debate between Nick Boles and Stephen Doughty

Ping Pong: House of Commons
Wednesday 27th April 2016 Commons Chamber

[Nick Boles]

The measures in the Bill aim to modernise the relationship between trade unions and their members and strike a fairer balance between the rights of trade unions and the rights of people who rely on public services, by ensuring that strikes happen only when unions have secured a clear, positive and recent democratic mandate. Consideration in the House of Lords has made important changes to the Bill, the great majority of which the Government believe will improve the Bill. However, the first group of amendments deals with those issues on which the Government do not support the proposed changes.

The first group is about electronic balloting and facility time. We have reflected carefully, in the light of the strong views expressed in debates in this House and in the other place, and I will take each issue in turn. As I have said before, the Government have no objection in principle to electronic balloting. I have also said before, and I am happy to say it again at the Dispatch Box, that it is likely to be common in 20 years’ time. We are seeking a degree of sensible caution on this matter.

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

The Minister will remember our many conversations about this in Committee. He says that he is not opposed to electronic balloting in principle and he accepts that it might come in. We can see the Lords amendment before us and there are moves towards a pilot scheme. Electronic balloting is used by many organisations including the Law Society, many businesses and indeed the Conservative party for the purposes of the mayoral elections. Why not just do this now?

[Nick Boles]

I have greatly enjoyed debating the many detailed clauses of the Bill with the hon. Gentleman over a long period when he occupied a different post on the Opposition Front Bench, and if he will give me time, I will explain why I am not quite ready to rush to the nirvana that he describes.

We are seeking a degree of sensible caution to ensure that important votes—these are indeed statutory votes—are safe and secure, so I am not asking hon. Members today to reject the clause added to the Bill in the House of Lords on electronic balloting. However, I am asking for agreement to a small but important change to ensure that we proceed prudently on the basis of evidence as we take this important step.

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[Nick Boles]

I am sure that the hon. Gentleman heard my previous answer and he must recognise that these are statutory elections. Internal elections for candidates in any party are not statutory. They might be subject to problems, but that is a problem for the organisation, not for the public. The public have a right to expect a higher standard in the consideration of statutory elections.

[Stephen Doughty]

rose—

[Nick Boles]

I will not give way to the hon. Gentleman; he has had a go. I will give way to the hon. Members for Brent Central (Dawn Butler) and for York Central (Rachael Maskell), who have not yet had a go, but all hon. Members are welcome to speak in this debate in their own right, so it would be right to make some progress.

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[Nick Boles]

No, I will finish. We know that when we introduced a similar provision in the civil service, we found that some organisations were acting perfectly responsibly and others were allowing an abuse of the system, hence we introduced a cap in the civil service. That has saved the taxpayer money and has not in any way undermined the proper fulfilment of responsibilities by trade union representatives. I shall now make some progress—

[Stephen Doughty]

rose—

[Nick Boles]

Well, okay. I have such a soft spot for the hon. Gentleman.

[Stephen Doughty]

The Minister is indulgent. I appreciate his generosity. Given some of the rhetoric from some of his ministerial colleagues and others about the matter, does he recognise that people might have a reasonable suspicion that even after collecting the data, the Government might seek to use these powers perniciously, going after particular groups whose practices they are not happy with, rather than using the powers in the way that he describes? Does he accept that that is a reasonable suspicion?

[Nick Boles]

I do not. After all, I am the Minister and I will be in charge of this until the Prime Minister decides otherwise. The hon. Gentleman has had enough time to judge whether or not I am sincere. He will also note that in the amended proposals that we are putting forward today, there have to be three years’ data before we can introduce a cap, and that where there is some concern about the level of spending we have to allow the organisation an opportunity to explain why that level of spending is appropriate. That responds in part to what the hon. Member for Blaydon (Mr Anderson) said. Partly through the good offices of hon. Members in this House and in the other place, there are now greater safeguards to ensure that there can be no abuses.

National Living Wage

Debate between Nick Boles and Stephen Doughty

Monday 18th April 2016 Commons Chamber

[Nick Boles]

I will not give way again.

We agree that we want everyone to benefit from the pay rise that that national living wage represents. I want to be clear about how we will ensure, as a Government and as Members of Parliament, that that is the case. The first and most important thing is to ensure that all employers fulfil, in full and in every case, their legal obligation to pay the national minimum wage at whatever level it is set for those under 25 and the new national living wage for those over 25.

I can report to the House that we are enforcing the national minimum wage more robustly than any previous Government and will be enforcing it more robustly every year. In 2015-16, Her Majesty’s Revenue and Customs identified more than £10 million of arrears for more than 58,000 workers across the economy—three times the arrears identified in 2014-15 and for twice as many workers. I am delighted to be able to share with hon. Members that we will increase the HMRC enforcement budget to £20 million in 2016-17, which is up from £13 million in 2015-16 and from only £8 million in the last year of the Labour Government. Spending on enforcement of the national minimum wage and the national living wage next year will be more than double what it was in the last year of the Labour Government.

[Stephen Doughty]

Even if the situation were as rosy as the Minister paints it, which it is not, there are the underhand tactics of companies in cutting benefits aside from pay to offset the increase or even make workers worse off, which have been pointed out repeatedly in the debate. Will he respond to that? Does he consider those tactics underhand?

[Nick Boles]

If the hon. Gentleman will give me a moment, I will move on to discuss the enforcement of what I consider to be moral obligations that fall upon all employers capable of meeting them. First, let me remind him about the previous Labour Government, whom I am sure he supported. He was not in that Government—he was not yet in the House, and nor was I—but they spent only £8 million on enforcing the national minimum wage in 2009-10. At a time when they seemed able to spend unlimited amounts of money on almost everything else, they thought it rated only £8 million. We are going to spend £20 million next year, which is why the amount of arrears secured and the number of workers being helped is significantly greater now than it ever was before.

Furthermore, we have introduced the scheme of naming and shaming companies that do not pay the national minimum wage or the national living wage and do not have a good reason for explaining why. That has been an extremely effective approach. Hon. Members should see some of the letters I receive from employers trying to persuade me to exclude them from a naming and shaming round; they take it very seriously indeed, as they do not want their customers and suppliers, and indeed their neighbours, to know that they have broken the law. I do, however, agree with the hon. Gentleman that legal obligations are not enough—not for us as individuals and not for employers either. I welcomed the contribution of the hon. Member for Burnley (Julie Cooper), who talked about her experience in employing 10 people and insisting on paying them a proper living wage because that was good for them, for her as an employer and for the business. Without being too pompous about it, let me say that that is the kind of moral responsibility we would hope and expect every employer to seek to fulfil.

I recognise the point made by my hon. Friend the Member for Shipley (Philip Davies) that some small employers will find the national living wage very difficult. I do not criticise them for an instant if they are not able immediately to ensure that every aspect of an employee’s conditions is preserved in full, because I am sure we would all agree that if the alternative is to fire some people, we would prefer to have more people being paid the legal national living wage than to have people losing their jobs. However, I am clear that for larger employers there is simply no excuse for trying to evade the effect of the national living wage by cutting other benefits and premiums.

National Minimum Wage: Sports Direct

Debate between Nick Boles and Stephen Doughty

Monday 14th December 2015 Commons Chamber

[Nick Boles]

The targeted sectors are those where low pay is prevalent and where many employers are therefore close to the minimum wage boundary and those where there have been significant breaches in the past and where there is therefore good reason to expect other such breaches in the future. I cannot tell the right hon. Gentleman how many such investigations there have been, but I am happy to write to him and place a copy in the Library.

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

The Minister wrote to me on 14 October about the care sector—one of the sectors he just referred to—saying that HMRC was investigating several companies in the sector, but he could not confirm which companies or comment on the progress of the investigations. Given what he said about being strident with the owners, managers and directors of these companies, will he be strident with MiHomecare and Mitie—previously run by the new Tory Baroness McGregor-Smith—about whose conduct significant concerns have been raised?

[Nick Boles]

It is not the job of a Minister of the Crown to lay down the law on individual cases and companies that have not been found definitely to have breached the law. I have been as clear as possible about any employer, large or small, that does breach the law, and I hope the hon. Gentleman can apply that to any particular case.

Trade Union Bill (Ninth sitting)

Debate between Nick Boles and Stephen Doughty

Tuesday 27th October 2015 Public Bill Committees

[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?

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[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.

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[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.

[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.

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[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.

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[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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

Trade Union Bill (Tenth sitting)

Debate between Nick Boles and Stephen Doughty

Tuesday 27th October 2015 Public Bill Committees

[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 ---

[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 ---

[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 ---

[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.

--- Later in debate ---

[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.

--- 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.

--- 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.

Trade Union Bill (Seventh sitting)

Debate between Nick Boles and Stephen Doughty

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?

--- Later in debate ---

[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.

--- 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.

[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.

--- Later in debate ---

[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)

Debate between Nick Boles and Stephen Doughty

Thursday 22nd October 2015 Public Bill Committees

[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.

--- Later in debate ---

[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 ---

[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 ---

[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 ---

[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 ---

[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.

[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.

--- Later in debate ---

[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 ---

[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 ---

[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 (Fifth sitting)

Debate between Nick Boles and Stephen Doughty

Tuesday 20th October 2015 Public Bill Committees

[The Minister for Skills (Nick Boles)]

It is a pleasure to open the line-by-line scrutiny of the Bill under your chairmanship, Sir Edward. This room has rather less comfortable chairs and rather more mind-blowing wallpaper but definitely better acoustics than the room that we were in for the evidence sessions. I think that we discovered through the evidence sessions that there are deep and passionate disagreements between the different parties on the measures in the Bill, but equally I hope that we discovered that both sides are prepared to argue their points courteously and respectfully, and we will all part, I hope, as friends and colleagues at the end of it.

Clause 1 sets out that references in the Bill to “the 1992 Act” are references to the Trade Union and Labour Relations (Consolidation) Act 1992. The Bill largely amends or inserts new provisions in the 1992 Act. This clause enables the shorthand form to be used throughout the Bill, and I commend it to the Committee.

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

Sir Edward, it is a pleasure to serve under your chairmanship in this room with the rest of the Committee; it is a pleasure to serve opposite the Minister and alongside many hon. Friends. I agree with the Minister that we had a lively start to consideration of the Bill during the oral evidence sessions. Fundamentally, I think that Opposition Members have explored how the Bill belies its stated intent. It is partisan. It challenges long-standing civil liberties in this country. It is poorly drafted, with significant legal implications.

Given that we are discussing clause 1, which relates to the 1992 Act—previous legislation—it is important to see the Bill in context: essentially, it is a Bill without a purpose. We heard on Second Reading, most notably from my hon. Friend the Member for Kingston upon Hull West and Hessle (Alan Johnson) that given the significant reduction in industrial action over the past 30 years, it is important to question why the Bill even exists in the first place. That reduction is borne out by the statistics; the number of days lost to industrial action each year has fallen dramatically. Since 2010, on average, 647,000 days have been lost, compared with 7,213,000 lost in the 1980s. There is no problem here and the Bill goes well beyond the realms of sense in challenging the long-standing right of workers up and down this country to stand up for their rights. We heard aptly from a number of witnesses that they see many objections to the Bill. The Government are struggling to find supporters to back it up.

I declare my interest—and I am sure that other hon. Members will do the same—as a member of the GMB union and draw attention also to my declaration in the Register of Members’ Financial Interests. Let me be clear from the outset: we intend to oppose every clause, because we consider the Bill an affront to civil liberties and the rights of workers up and down the country, and do so starting with this clause.

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

--- Later in debate ---

[Nick Boles]

At the opening of the debate and of the evidence sessions, every Opposition Member rightly and properly declared an interest as being a member of a trade union. In many cases, they have also declared an interest as being a former official of a trade union. They are proud of that, and they are right to be proud.

I do not have that privilege, but I have another privilege, which is to be a member of the general public. As members of the public, we rely on hospitals being open, because we do not get to go to another hospital under the NHS. We have to go to the one that has offered us the appointment. As members of the public, we rely on a particular school to take our children and educate them for the day, because we do not have the option to buy our way into another school within the public services. We have to send our children to the same school every day. As members of the public, we rely on particular forms of transport that are monopolies in people’s lives. We do not have the choice to choose other forms of transport very easily when a form of transport is closed due to a strike.

I can tell the Committee that all Government Members take our responsibilities as Members and representatives of the general public seriously indeed. All we are trying to do through the Bill is to think of their interests when strike action happens and to adjust slightly the balance of power between union members and members of the general public. Opposition Members are absolutely right to represent the unions that they have all either worked for or been members of for many, many years, but we on this side of the House are absolutely right to defend the interests of the members of the public who put us here and elected us to this House.

[Stephen Doughty]

I have to say that it is a shame that the Minister is starting the debate by being somewhat disingenuous. Opposition Members also represent members of the public. In fact, the TUC made it clear in its evidence that it represents 6 million members of trade unions throughout this country who are also members of the general public and want their rights respected. Indeed, there are members of families who are not members of unions, but they also want their family members’ rights respected. Will the Minister not acknowledge that with one in 10 of the British population being members of trade unions, as the TUC has put it, the Bill has a significant impact on their rights and responsibilities and they are all members of the public too?

[Nick Boles]

I am happy to accept that the one in 10 members of the public who are also members of trade unions must be represented properly in the House, and Opposition Members are doing an admirable job of representing them. I contend that the other nine out of 10 members of the public who are not members of unions and who are affected by strikes when they shut schools and hospitals and close down transport networks also deserve representation, and that is what we are providing.

--- Later in debate ---

[Nick Boles]

I will not give way.

I am absolutely going to assert that millions of parents had to take a really difficult decision that had a great impact. Either one of them had to take a day off work, which they did not expect and so could not give their employer much notice, or they had to spend a great deal of money on emergency childcare, or they had to inconvenience another member of their family to provide childcare cover. So do not come to me—I know you would not, Sir Edward; I say this to the shadow Minister—bandying about your very low figures for the number of days lost directly to industrial action when 1 million parents in that strike that closed 20% of the nation’s schools had either to take a day off work or spend a great deal of money that they would rather not have spent on emergency childcare.

[Stephen Doughty]

I have no reason to doubt the disruption that is caused by any individual strike. We are all clear that we want to avoid that. My mother was a teacher, and I have friends with kids. It causes disruption for lots of people. My mother was a member of the NUT, in fact, and she took any suggestion of industrial action or strike action very seriously. She was hardly a militant, and she would not have wanted to do that. However, I think the Minister needs to put those statistics in context. Given that he has done that extensive analysis, perhaps he or his officials can estimate the number of days lost to a child’s education over the course of their school career—perhaps just their primary school career. It will be a very small number.

In that example—I do not know to which strike the Minister was referring—the union may have had extremely good reasons to go on strike. They do not want to, and we all recognise that it has an impact, but it must be seen in a wider context. It is not enough to justify the measures in the Bill.

[Nick Boles]

I want to move on to the amendments. I am sure the hon. Gentleman will remember that the strike I was talking about, which happened last year, was supported by 22% of NUT members. I am sure it was very important for those 22%, but it was not particularly important—not sufficient for them to fill out a ballot paper and put it in the post—for the other 78%, so let us get this in perspective. It was clearly of rather more importance to the millions of parents who were affected than it was to the 78% who had the right to vote but did not.

I will now turn to the amendments unless hon. Members want to intervene.

--- Later in debate ---

[Stephen Doughty]

I thank the Minister for his assurances about the existing case law and previous legislation. Given that he is in the mood for tweaking, would he go back and look at those issues? We have been very clear that we oppose the legislation but, if the Minister is going to proceed, would he look at clarifying beyond doubt in the Bill that those little problems cannot be used by people who might seek to be vexatious in frustrating unions that are reasonably trying to comply with it?

[Nick Boles]

I am always happy to look and reassure myself, but I am pretty confident that that is the case. The amendments proposed by the Opposition go further. They would allow the union to import a reasonable belief into a trade dispute. That is in stark contrast to the current position, where there is an objective test to determine whether a matter constitutes a trade dispute or not. That is important because it is the basis from which flows the legal protections for unions and for strike action that is taking place properly. It would allow the issue to be open to a degree of uncertainty, according to what the union believed. That would be detrimental to employers and would tip the balance too far in favour of trade unions. The current wording allows clarity for both parties.

Other changes that the Government are making to the regulation of trade unions will simply make amendments 1, 8 and 22 unnecessary. The coalition Government introduced a new requirement for unions to submit membership audit certificates to show that they are complying with their duty to keep membership records accurate and up to date. The changes are designed to ensure that unions know who their members are, enabling them to be democratically accountable and to reflect the will of their members. The first membership audit certificates are due in June 2016. The fact that unions will therefore have more reliable membership records means that they will in future have more confidence that those who are entitled to vote receive the ballot paper. I am therefore not convinced that unions need leeway to allow certain members to be left out of the number of those who count towards the thresholds. Of course, that same point applies to amendments 20 and 21.

--- Later in debate ---

[Nick Boles]

Fair enough, Sir Edward.

The fact that the unions will have more reliable membership records means that, in future, they will have more confidence that those who are entitled to vote do indeed receive a postal ballot paper. That is why I am not convinced that unions need leeway to allow certain members to be left out of the number who count towards the thresholds. As I have said, that point applies to amendments 20 and 21 as well.

Finally, on amendment 23, it is not enough simply to have the 50% and 40% thresholds in place. We must also ensure that union members and the employer have information about whether all the conditions that relate to the ballot mandate have been met, because it is not just the union leaders who need to know whether the ballot has secured a valid mandate. Members and employers ought to know whether any subsequent industrial action is valid and legally secure. Information about whether the threshold or, if appropriate, thresholds are met is a crucial part of that. It adds transparency and clarity to the process.

Of course, we could leave unions, members and employers to work it out for themselves from information that they are already entitled to receive—under section 231 of the 1992 Act—about the number of votes cast and the number of individuals answering either yes or no, but that would not be fair. The union will have calculated the result in order to know itself whether it has secured a mandate, so why not simply pass on that information to those who are directly affected by the mandate? On that basis, I urge the hon. Member for Cardiff South and Penarth to withdraw amendment 1.

[Stephen Doughty]

I do not wish to withdraw the amendment. I will briefly comment on a few of the points that the Committee has made on this group. First, my hon. Friend the Member for Cardiff Central raised some important points about the turnout thresholds for police and crime commissioners, which gave us a very strong context for the absurdity of the Government proposals and their position. The Government have been involved in plenty of other ballots, not least the election of many Conservative Members—I accept that this is also true of Opposition Members—where those thresholds would not have been met.

I also refer to the point made on the impact of abstentions, which we will emphasise at numerous points in the Bill. The Government are supposedly serious about increasing turnout, but there is nothing in the Bill to increase participation. My hon. Friend the Member for Sunderland Central made some important points about the potential to undermine partnership working in seeking a resolution to disputes, and spoke of the practical experience that she and others have had. She described a ballot as the most intensive thing that unions and employers go through and spoke of the challenge of getting lists right.

The hon. Member for Glasgow South West aptly pointed out the equality impacts and trade union self-regulation on whether to take action.

--- Later in debate ---

[Nick Boles]

I thank the hon. Gentleman for his comments on the amendment. In matters as serious as workplace disputes and industrial action, it is of course right that trade unions must undertake a number of procedures when running a strike ballot. The rules are there to ensure consistency and fairness in how the ballot is organised. They are not in place to trip up unions, but are there to protect the interests of workers, employers and the unions themselves.

Inconsequential errors of process that have no material impact are not what the balloting rules are designed to address. That is reflected in the Trade Union and Labour Relations (Consolidation) Act 1992 and in case law, which together already protect trade unions against challenge over insignificant breaches of the balloting rules. For example, section 232B of the 1992 Act provides that a union still complies with the requirements on balloting even if it has made some error in the process, so long as the failure or failures are accidental and on a scale that is unlikely to affect the result of the ballot. As I mentioned previously, in the case of RMT v. Serco the Court of Appeal held that although the exception in 232B does not apply to all parts of the 1992 Act, that does not prevent a union from claiming immunity when there is an insignificant breach or a trifling error in relation to the rules, even when there is no explicit statutory defence. That case also made clear how far unions must go to ensure the accuracy of the figures given in ballot and strike notifications, and the explanation they must give as to how the figures have been reached. Specifically, it established that there is no obligation for a union to obtain further information or to set up systems to improve its record keeping.

The law, therefore, already delivers the assurance that the hon. Gentleman seeks, and I ask him to withdraw the amendment.

[Stephen Doughty]

I thank the Minister for his comments. The points that have been made are important, because with any legislation it is not beyond the ken of those who would wish to frustrate the exercise of democratic rights to attempt to use the law in a way that would at least bog down disputes in lengthy litigation. I appreciate the Minister’s reading his comments into the record, and I certainly hope that they will be considered if the Bill proceeds in its current form. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Trade Union Bill (Sixth sitting)

Debate between Nick Boles and Stephen Doughty

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—

--- Later in debate ---

[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.

--- Later in debate ---

[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 ---

[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 ---

[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.

--- 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.

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[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.

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[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.

Trade Union Bill (Third sitting)

Debate between Nick Boles and Stephen Doughty

Thursday 15th October 2015 Public Bill Committees

[Stephen Doughty]

Q 319 The Bill’s provisions would have to be adhered to within three months of Royal Assent and its commencement. Do you think that is a fair amount of time for any organisation to comply with such significant changes to law?

Byron Taylor: No, I really do not. Three months is an extremely short timescale. Let us bear in mind that trade unions are, primarily, industrial organisations; politics is very much a secondary function for them. If the Bill is passed unamended, we will be asking 4.9 million people to opt back into the political fund in a three-month period. To set that against a couple of other examples, the recent changes relating to plastic bags supplied by retailers were enacted in Ireland in 2002, in Wales in 2011 and in Scotland in 2012. The coalition Government initiated the change in the UK in 2013 when they conducted the regulatory impact assessment and the Deputy Prime Minister announced the policy in October 2013. Companies have had a significant time to be aware that the changes are likely to happen, and as of 2013 they had two years to prepare for that.

Another example is self-assessment; everyone who completes a self-assessment is required to submit their returns by the end of January each year. They have a clear 12-month notice period that they must effect that change, and a significant Government-sponsored media campaign is run to inform people that they need to get their returns in by 31 January. If they fail to do so, a fine of £100 is imposed. Despite all those safeguards, this year alone, 890,000 people failed to fill in their self-assessments. We are asking 4.9 million trade unionists to opt into the political fund in a three-month period dated from Royal Assent, and I think that is unacceptable. There is also the issue of retrospection. Those people joined a collective organisation and opted, as part of their decision to join a trade union, to become part of the political fund. I see no clear public interest test that requires trade unionists to opt in to the political fund of their trade union when they have already joined that trade union in the past, and I fail to see what reference the Government are making to human rights on this matter. In 2002, the Solicitor General referred to the public interest and human rights when he spoke of retrospective legislation, and I believe that the Bill is such legislation.

[Nick Boles]

We do not intend to intrude upon the conversation among members of the Labour party, who seem to be having a very good time.

Trade Union Bill (Fourth sitting)

Debate between Nick Boles and Stephen Doughty

Thursday 15th October 2015 Public Bill Committees

[Stephen Doughty]

Q 412 On balloting, the Minister and other witnesses have referred extensively to the Speaker’s Commission on Digital Democracy in advancing an argument against the use of e-balloting that I think most members of the public would find absolutely nonsensical, given that if we want to increase participation, we should increase the methods by which people can participate. The evidence to the commission from the Open Rights Group, which I think influenced what the Minister has been saying, made it clear that it was based on a comparison between general election voting in polling stations and online voting. The evidence did not consider the current union context of postal ballots under the Trade Union and Labour Relations (Consolidation) Act 1992, so it is not relevant to the discussion of the Bill. Why does the Minister keep citing the Speaker’s Commission on Digital Democracy as evidence to stand in the way of e-balloting?

[Nick Boles]

I do not know why voting in a strike ballot is essentially different from voting in other elections. We have been very clear about our position and the Prime Minister has replied to Mr McCluskey’s letter to make it clear that, as I have said several times—I certainly said it in the wind-up on Second Reading—we do not have an in-principle objection to the exploration of alternative methods of voting, including e-balloting, but we have some practical concerns that were set out very well in the evidence from the Open Rights Group and also in other discussions about various forms of voter identity protection, voter fraud and the like. If those practical objections can be overcome, this question might well be revisited in future, but we are not currently satisfied that voting can be done safely online in these elections. That may well change.

[Stephen Doughty]

Q 413 Have you taken advice from the Electoral Reform Society? It advises that, in 2014 and 2015, the Nationwide building society, Yorkshire building society, the Co-operative Group, the British Medical Association, the Chartered Institute of Marketing, the Federation of Small Businesses and the Institute of Chartered Accountants in England and Wales—the list goes on and on—have all used these methods. Most members of the public listening to this debate will struggle to understand why the Government are not willing to come forward, have a sensible discussion about e-balloting and secure workplace balloting, to which I can see no objections whatever, and get to a solution.

[Nick Boles]

The hon. Gentleman has started that debate, Sir Alan, and I am sure that this is not the end of it. We will debate the different forms of voting and the practical objections, or otherwise, to them. All we are saying are that our concerns, which we have not just made up—they are shared by others, independent of Government, and were elaborated upon in the Speaker’s commission, which met only last year—have to be overcome. Frankly, internal elections in organisations to choose office-holders have to meet a much lower test than elections that involve the withdrawal of labour, the closure of services and great disruption to the public, so we are right to attach a higher level of demand—

[Stephen Doughty]

But it is fine for the annual general meetings of major financial organisations.

Draft National Minimum Wage (amendment) Regulations 2015

Debate between Nick Boles and Stephen Doughty

Thursday 10th September 2015 General Committees

[Nick Boles]

Mr Gapes, I hope you will recall that I made a point of giving credit to the last Labour Government for introducing the national minimum wage. It was a good idea, a good policy, and Conservative Members make no apologies for agreeing that we were wrong about the national minimum wage. Labour was right, and that is why we have adopted and supported it, and why we are this year introducing the largest increase since the last Labour Government. It is also why we are going further by introducing a national living wage that will benefit even more people over the age of 25. Therefore, it might have been perhaps brotherly if the hon. Member for Cardiff South and Penarth had responded by acknowledging that we have adopted the national minimum wage, and not just that, but that we have dramatically increased the enforcement efforts relative to those of the last Labour Government.

We have taken a budget, which in 2009-10, amounted to £8.3 million, and during a time of austerity, spending cuts and of an attempt by this Government to close the vast deficit opened up by the last Labour Government, we have expanded it, so that in 2015-16, it will be £13 million. That is a dramatic increase and one of the few budget lines in any budget to increase by that proportion. We have also introduced a naming and shaming scheme, which names individual directors and companies who fail to pay the minimum wage and are not able to provide us with any adequate explanation of why they have done so. It has had an enormous effect. Hon. Members should see the letters from people begging not to be named that come across my desk, and although we are the party of business, we are not the party of businesses that fail in their social responsibilities and moral duties, and we make no bones about doing that.

The hon. Gentleman focuses on prosecutions, which are perhaps a particular obsession of his. I do not know whether he was once a criminal barrister, but he seems inclined towards thinking that prosecutions are the only way to enforce. My view is simply that we want to enforce as effectively as possible. Effective means getting the money that is owed to hard-working people back into their bank accounts as soon as possible and ensuring that employers pay the rates that they should be paying. Prosecutions have been few, but there were few prosecutions under the previous Labour Government after the national minimum wage was brought in. The reason for that—it is a good reason—is that, in most cases, prosecuting is not the best way of achieving the best outcome for the working person who has not be paid their due. It is in some cases, however, which is why we announced last week a new specialist enforcement team at HMRC specifically to focus on prosecutions, which will rightly continue to remain rare because we are trying to achieve results and not just to be able to wave around prosecutions statistics.

The hon. Gentleman asked a reasonable question about the increase in the accommodation offset, and he is right to point out that it is a larger percentage than the proposed increase in the statutory minimum wage. I simply say that we are following the Low Pay Commission’s recommendation on that, as we are on the adult rate for the national minimum wage, but it can certainly be argued—the hon. Gentleman made the point well—that the increase in the national minimum wage will feel rather less generous for some people than for those who are not affected by the accommodation offset. As has been the precedent, we have tried to stick to the Low Pay Commission’s recommendations in almost every respect, except on the apprenticeship minimum wage.

[Stephen Doughty]

I appreciate what the Minister is saying. Given that the discrepancy could grow over time, is any kind of review likely? I accept what he says about following the LPC’s recommendations, but the issue could grow as time goes on.

[Nick Boles]

I would not want to promise formal reviews, but I am happy to say that, in preparing our submission to the Low Pay Commission for next year, I will ensure that we address the discrepancy in the increases. We will ultimately take the advice of the LPC on whether it is reasonable.

The hon. Gentleman made an important point about a particular company, but I do not want to discuss that here and I have no further information about the processes. I am happy to write to him with any information that I can give, although he will understand that that is sometimes limited. He is right to discuss a particular part of the social care sector, where the overwhelming majority of employers discharge their responsibilities fully. As constituency MPs, however, we are all aware of cases in which that does not take place or where the imposition of travel costs on people who are on the national minimum wage is not entirely lawful. Before the summer, I had a meeting with the Care Minister to discuss the matter, at which we are looking closely. Through the naming and shaming scheme, we are able to highlight a particular sector and to bring problems to the fore in order, hopefully, to remind others in that sector of their responsibilities. We are definitely looking at that. I do not want to imply that there are problems in the sector overall, but the hon. Gentleman is right to suggest that such cases exist and we need to root them out, just as we need to do in every other sector.

Question put and agreed to.