Lawful Industrial Action (Minor Errors) Bill

Philip Davies Excerpts

Friday 22nd October 2010 Commons Chamber

[Mr Nuttall]

I intend to take interventions, as is the normal custom in this House. I have no intention to speak at great length, but I look at it like this: the public out there expect the other side of the argument to be fairly put, and that is what I intend to do, because I am not persuaded that the Bill is merely a technical measure. Nobody would have gone to the time and trouble of bringing this matter before the House if it was such a trivial matter. It is not trivial; it proposes to change the law of the land. It deserves careful analysis and detailed examination, and that is what is going to happen on the Floor of the House this morning.

To return to the CTU, let us not forget that there are many members of trade unions who are not paid-up members of the Labour party. There are many who are members of the Conservative party, of the Liberal Democrats—I am sorry to see that they are not present in great number on the Government Benches this morning, although I hope that they will be here before too long—the Scottish National party or Plaid Cymru. There are also many—they may well be the majority—who are members of no party at all. I therefore do not regard this issue as a particularly party political matter; rather, it concerns good industrial relations.

For 16 years I was an employer. I ran a small solicitor’s practice, and in the end I was responsible, along with my partners, for employing 40-odd people, so I know quite a bit about employing people. I know a lot about keeping staff happy, and I know how important it is that there are good relations between an employer and an employee. Members of the CAW wanted to work with their trade unions to help their employers be successful. It is rarely the case that an employer can be successful if their employees are withdrawing their labour. The result is invariably that the company and the employees both lose out, and in the long run that is of no great benefit to either.

In the 16 years that I was running the firm, we never had any problems with the unions. To be fair, there was no unionisation, but they were free—[Interruption.] I always said that if any of the staff wanted to join a union, they were entirely free to do so. However, without being too immodest, I like to think that the fact that there was no unionisation was perhaps because we tried to be good employers and because the staff did not feel it necessary to join a union. They were quite free to do so, but as far as I can recall, none of them ever decided to withdraw their labour.

Let me declare a further interest, in that my brother is a merchant seaman. As will become apparent later, when I consider some of the detailed provisions in the Bill, that is particularly relevant, as the Bill seeks to amend subsections (2A), (2B) and (2C) of section 230 of the Trade Union and Labour Relations (Consolidation) Act 1992.

[Philip Davies (Shipley) (Con)]

Does my hon. Friend not think it strange that the Labour Government, who were in office for 13 years, made changes to the 1992 Act in 1999 and 2004, and yet on both occasions, when they were reviewing and amending the legislation, decided to leave those provisions intact? They thereby indicated that they thought that they were perfectly sensible. Now that Labour Members are in opposition, after 13 years of being in government, is it not bizarre that they seem to think that those provisions are no longer appropriate?

[Mr Nuttall]

My hon. Friend is quite right. I will have something to say on that later, although I should point out now that section 232B, entitled “Small accidental failures to be disregarded”, which the Bill seeks to amend, was actually introduced by the Labour Government, through the Employment Relations Act 1999. We can therefore safely assume that this measure, which was not originally in the 1992 Act, was one that the Labour Government wanted included in that Act.

Subsections (2A), (2B) and (2C) of section 230 of the 1992 Act contain special provisions relating to the requirements that are applicable to merchant seamen—who have special requirements owing to the nature of their work—who are also members of a trade union.

I genuinely congratulate the hon. Member for Hayes and Harlington on his perseverance with this measure. On Thursday 23 November 2006, almost four years ago, he came 16th out of the 20 successful Members in the ballot in that Session. He then decided to introduce the Trade Union Rights and Freedoms Bill, which was part of a campaign being pursued by the unions following the Trades Union Congress of 2005, which had passed a motion calling for a trade union freedom Bill in the wake of the dispute between Gate Gourmet and its catering staff at Heathrow airport. Members will note a common thread involving Heathrow airport and airport matters. One of the principal provisions of the trade unions’ motion was the simplification of the complex regulations on notices and ballots, which restrict the ability of unions to organise industrial action when a clear majority of members have voted in support. I do not agree that the regulations are necessarily complex.

The hon. Gentleman introduced his Bill on 13 December 2006, and it was scheduled for Second Reading on 2 March 2007 but, unfortunately for him, there was insufficient time for it to be considered. It was not given a Second Reading and it subsequently fell. I should add that the introduction of that Bill was followed by early-day motion 532, which stated:

“That this House recognises that free and independent trade unions are a force for good in UK society around the world and are vital to democracy; welcomes the positive role modern unions play in providing protection for working people and winning fairness at work; notes the 1906 Trades Disputes Act granted unions the legal freedom to take industrial action; regrets that successive anti-union legislation has meant that trade union rights are now weaker than those introduced by the 1906 Trades Disputes Act”—

I do not know whether that was a critical attack on Labour’s own 1999 and 2004 legislation. The motion went on to say that it

“therefore welcomes and supports the TUC campaign for a Trade Union Freedom Bill whose principles include better protection for workers, such as those sacked by Gate Gourmet in 2005, the simplification of ballot procedures and to allow limited supportive action, following a ballot, in specific circumstances; and therefore urges the Government to bring forward legislation to address these proposals.”

The motion was moderately successful, unlike some that attract only—

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[Mr Nuttall]

My hon. Friend is absolutely right. There is a real danger that the Bill could be a Trojan horse. It could easily take us into new territory. It could also take us back to a previous era that many people outside the House thought they had seen the last of.

[Philip Davies]

My hon. Friend has a legal background, and I do not. The case being made by Labour Members seems to be that they do not think that judges should interpret the law, and that the law should be clear and straightforward. The Bill seems to be throwing us out of the frying pan into the fire, however, because it says that a judge has to accept a ballot if there has been “substantial compliance” with the provision in question. Can my hon. Friend tell me, in legal terms, whether there is a legal definition of “substantial compliance”? For example, would 51% compliance count as “substantial”, or would it need to be 60% or 80%? Or are we going to go straight back to having judges deciding what is substantial and what is not?

[Mr Nuttall]

My hon. Friend is broadly right. The Bill seeks to move the law from a situation in which the courts are asked to consider whether something is a small, accidental failure that should be disregarded to one in which they consider whether there has been “substantial compliance” with the law. I will come to that point in a moment.

I was just saying that I do not think that we should be lulled into a false sense of security simply because the title of the Bill refers to “minor errors”. The Bill is, I believe, worthy of comprehensive analysis and scrutiny if only because our constituents would rightly expect it. This Bill will not affect trade unionists alone; it will affect everybody and the lives of everybody affected will be blighted. One can only assume that the thrust of this proposed legislation is to make it easier for trade unions to organise strike action. That will affect—it will potentially affect; it could affect—every family in this country. That is why I believe the Bill deserves somewhat more detailed scrutiny. I appreciate that I am a new Member, so I might gloss over or miss things that others with longer service might not. They will be better placed than me to give it the examination that I think the Bill deserves.

[Philip Davies]

My hon. Friend made a good point when he said that the Bill’s title refers to “minor errors”. I believe that the Network Rail v. RMT case was cited in support of this Bill, but does my hon. Friend agree that balloting people from 11 signal boxes that did not exist, some of which had been shut down 44 years ago and one of which, on the union’s own admission, had burned down hardly constitutes a “minor error”?

[Mr Nuttall]

My hon. Friend is right. My concern is that if this legislation were allowed to proceed in this form, that sort of slipshod behaviour might be allowed to continue in future. I submit that one reason why a line of cases has been brought before the courts is that employers have upheld the will of this House and have sought to secure full compliance with what was originally intended. I stress again the importance of what was intended not by the 1992 Act but by the Employment Relations Act 1999, which was introduced by the Labour Government.

In his opening remarks, the hon. Member for Hayes and Harlington said—I agree with him—that we begin to understand the full effect of this proposal only by looking at the legal framework in which employees and employers operate. The starting point is the contract of employment itself. Under such a contract one individual, the employee, provides his or her services or labour for the benefit of another, the employer. In return, they are paid for the labour they provide. The work is manual labour in some cases or it could be “white collar” work, as we call it, or it could be providing expertise on a particular subject. It follows that withdrawal of that labour is a very serious matter and, unsurprisingly, the law attaches serious consequences if someone breaches that agreement, as it does with any other breach of contract,.

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[Philip Davies]

I want to drag my hon. Friend back to the point made by my hon. Friend the Member for North West Leicestershire (Andrew Bridgen) about the Bill’s terminology of substantial compliance. Does he agree that it would be interesting if Labour Members accepted substantial compliance as the basis for legislation generally? For example, in the case of a major health and safety problem at work, would their presumption be that the employer should face no sanction if that employer had displayed substantial compliance throughout the rest of the year. Does my hon. Friend agree that the concept of substantial compliance might have merit after all?

[Mr Nuttall]

I am sure, Madam Deputy Speaker, that Mr Speaker is most upset that he has not been able to stay and listen to the rest of this interesting debate, but he will be able to read it later.

I thank my hon. Friend the Member for Shipley (Philip Davies), who raises an interesting question. The point was made earlier that the provision might be a Trojan horse. If we go down the path of referring to matters as substantially complied with, or saying that, taken together, there has been substantial compliance, there is a danger that it leaves open a gaping hole. What is not substantially compliant? What should we do if someone complies with their health and safety policy for 51 weeks, but not in the other week? Such an approach does not make sense. During detailed examination of clause 1(3), I shall consider whether the Bill takes us any further forward.

[Mr Nuttall]

My hon. Friend is right. I can well understand those who comply with the law for all of the time not being too happy about other groups being allowed to comply with the law for only part of the time. The rest of the time they can say, “Well, we have substantially complied with the law.” What should we do with a burglar who said, “Well, I’ve been substantially compliant with the law for 364 days of the year, but today I happen to have fallen foul of the law”? Should we let him off? What absolute nonsense.

Any employee who breaches their contract of employment leaves themselves open to the risk of being found liable, under the law of tort, to their employer, for breach of contract. That applies whether the contract is for unskilled manual labour, skilled manual labour, or what is often termed white collar services. The liability applies equally to those organising industrial action, such as—but not necessarily exclusively—trade unions, because those concerned will seek to procure a breach of contract, which is a tort under English law. Under those circumstances, both individuals and trade unions risk incurring liability to the employer. I add that there is also a potential liability to third parties. In individual terms, the employee is also, of course, liable to be dismissed.

Only through the protection afforded by statute can employees and trade unions escape the consequences of their actions in withdrawing their labour and breaching the terms of their contract of employment. That was first accepted, as the hon. Member for Hayes and Harlington mentioned, as long ago as 1906 when the Trade Disputes Act was passed. Prior to that, the common law provided that trade unions were liable to claims for damages for inducing a breach of contract. The 1906 Act granted them immunities from those liabilities. As I mentioned in response to my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg), 100 years earlier the Combination Acts of 1799 and 1800 made it illegal for workers to join together and press employers for shorter hours or increased pay. Those Acts remained on the statute book until 1824 when they were repealed, to be replaced by the Combination Act of 1825.

[Philip Davies]

Does my hon. Friend agree that when we consider what is fair and reasonable in such legislation, part of the equation that should be considered, and that appears to have been considered in cases such as British Airways v. Unite, is the impact of the strike action on the business and its customers? If, as in the case of Unite, there is an attempt to wreck Christmas holidays for over 12 days, which would have affected British Airways and its customers to a devastating extent, the highest possible standards must be expected of unions in such circumstances.

[Mr Nuttall]

rose—

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[Mr Nuttall]

My hon. Friend makes an interesting point, which we will look at in more detail when I look at the next paragraph of the subsection. The problem with the Bill is that it not only introduces the novel concept of substantial compliance, but extends the scope of the 1992 Act to cover not just the ballot but the notice provision. Therefore, it is doing two things at the same time. Incidentally, the provision also extends the number of sections to which the exemption applies, which we will look at later.

May I move on to subsection (1)(b) of section 232B, which states that the failure will be disregarded if

“the failure is accidental and on a scale which is unlikely to affect the result of the ballot”.

It seems that, when the 1992 Act was amended, the then Labour Government knew exactly what they were doing. They were providing for minor errors to be discounted. In section 232B, they specifically allowed for a failure which is

“accidental and on a scale which is unlikely to affect the result of the ballot or, as the case may be, the failures are accidental and taken together are on a scale which is unlikely to affect the result of the ballot”.

That seems to be straightforward and simple to understand.

[Philip Davies]

It may be straightforward to someone as intelligent as my hon. Friend, but may I ask him to clarify the matter for those of us who do not have his intellectual capacity? Does the law as it stands say that the failure would be disregarded if it were, “accidental and does not affect the ballot” or does it say that it would be disregarded if it were “accidental or does not affect the ballot”? If the problem in the vote were not accidental, presumably it would not matter if it made any difference, because the union would have to meet both tests: the failure would have to be accidental and not make any difference. Can he clarify whether both tests have to be met at the moment?

[Mr Nuttall]

I thank my hon. Friend for that intervention. The position is more complex perhaps than I originally intimated. Section 232B(2)(b) says that, in relation to a ballot, if there is a failure or there are failures in respect of a provision mentioned in subsection (2) or other provisions, and the failure or failures are accidental and on a scale that is unlikely to affect the result of the ballot, those can be disregarded. It is worthy of note that the section already makes provision not just for a single failure but for failures, so it already provides for more than one failure. There could be several failures and the law accepts that at the moment. It accepts that there could be multiple failures and the existing legislation would still potentially allow those to be disregarded by the courts, as happened in the case that has been so often referred to this morning—the case of British Airways plc v. Unite. There were a number of errors. The Court of Appeal, by a majority, decided to allow the appeal and discharged the injunction that had been obtained at first instance by the court.

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[Philip Davies]

This appears to get down to the nitty-gritty of what is accidental. It seems to me from the judge's summing up that Unite got it wrong in its dispute with BA. The judge said that he thought that

“it therefore seems clear that the union was aware, or certainly ought to have been, that the figures provided to BA in the ballot notice included a substantial number of those who were shortly to leave on voluntary redundancy, and therefore included members who the union could not reasonably have believed would be entitled to vote in the ballot.”

In that case, the mistakes might have been minor, according to the interpretation of the hon. Member for Hayes and Harlington (John McDonnell), but they certainly could not have been accidental if the union was balloting people whom the judge ruled it should have known, or did know, were not entitled to vote.

[Mr Nuttall]

My hon. Friend makes a valid point. One of the problems with the interpretation of the clause relates to what is accidental and what is not. I submit that we are going to have exactly the same problem if we change the law and introduce the concept of substantial compliance. We are not any further forward than we were.

[Mr Nuttall]

I thank my hon. Friend for his intervention. I certainly do not think that it is appropriate that the House should legislate for incompetence, and effectively that is what this Bill is leading towards. It is effectively saying that there could be 70%, 60% or 80% compliance with the law and that would be okay. I might be wrong, but I am of the opinion that members of the public outside this House rightly expect a trade union, or indeed, as my hon. Friend the Member for North West Leicestershire said, any other group, to comply with the law to a much higher degree.

I think the degree of compliance should be 98% or 99%, which was the intention in 1999 when the then Labour Government introduced section 232B providing for small accidental failure to be disregarded. The new provision refers to

“the failure…or the failures taken together”,

so it mirrors the current situation in that duplicate failures would be permitted. It also states that

“there has been substantial compliance with the provision or provisions in question”

and

“on a scale which is unlikely to affect (in the case of a ballot) the result of the ballot or…a reasonable recipient’s understanding of the effect of the notice”.

The problem is that that provision takes us no further forward. Employers are just as likely to say, “Well, has there been substantial compliance or not?” It is not clear, so we are no better off than if we were to ask whether there had been a minor or accidental failure. Therefore, this provision will prove to be a treasure trove for lawyers.

[Philip Davies]

Given that the purpose of the Bill is to try to avoid any misunderstandings, does my hon. Friend agree that it would have been more helpful if the hon. Member for Hayes and Harlington had included a definition of substantial compliance? If he had, we might have avoided some of these problems.

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[Mr Nuttall]

My hon. Friend is right. Whether or not something may or not result in the ballot being affected is a very moot point indeed, and it could exercise the courts for a very long time.

I think there is a danger that the lawyers are sitting out there rubbing their hands with glee, because when they see the Bill they must think, “Marvellous! We’ve almost run our course in respect of the 1992 and 1999 legislation, which has been to the Court of Appeal, but we are now going to move back to square one and start again. We can spend hour after hour in the Queen’s bench division and then the Court of Appeal.” The issues will not be dealt with in, say, Uxbridge county court.

[Philip Davies]

Returning to the point made by my hon. Friend the Member for Dover (Charlie Elphicke), is there not an irony here in that the hon. Member for Hayes and Harlington has introduced the Bill to benefit his friends in the trade unions and they have got a Court of Appeal decision that is favourable to them that they could presumably use in further cases as case law, yet he wants to scrap that judgment, which eventually found in their favour, to introduce a new element to the law that is uncertain? If the hon. Gentleman wants to help his friends in the trade unions, should he not leave the law as it stands with this clear verdict from the Court of Appeal, rather than try to introduce a new Bill that introduces new uncertainty? He is not even helping the people his Bill is designed to help.

[Mr Nuttall]

Absolutely. My hon. Friend is right that there is a real danger that this Bill will not only move industrial relations back three decades, but will move the analysis of the case law back to square one—back to 1992 or 1999. We will be starting with a blank page, and the lawyers will be able to say, “Well, here we are. All past judgments are out of the window because there is now a new piece of legislation.” All the previous cases that have been cited this morning will, effectively, be made redundant because the measure that has been tested before the courts on several occasions will no longer be on the statute book, and we will be faced with a new measure that has never been tested before the courts. It will not be long before an employer is required to put the matter to the courts for a decision and, as I said, these are not matters that could be dealt with in a county court. They would inevitably have to be dealt with in the High Court. They would then be appealed to the Court of Appeal for civil cases, and who knows whether they would go on to the Supreme Court. They would be lengthy and expensive actions, and I submit that we would be no further forward in having clarity in the law—which, after all, is why we are here in Parliament. We thought we had nearly got there in the case of British Airways v. Unite earlier in the year. If we now go back to square one, we will be no further forward.

[Philip Davies]

I am pleased my hon. Friend agrees with me about that. However, has not the hon. Member for Hayes and Harlington reasonably identified that the crux of the BA case is the definition of accidental? It was the judge’s view that in this case accidental did not mean unintentional—that there was not enough to satisfy the demands of the law. If the hon. Gentleman wants to deal with the BA problem, to which he referred at length in his speech, would he not be better off just amending the law to give a definition of accidental, rather than going back to the drawing board and introducing a completely new concept altogether?

[Mr Nuttall]

My hon. Friend is right, because rather than deal with the matters raised in the judgment, such as the definition of “accidental”, the Bill seeks to introduce a novel concept of whether there has been “substantial compliance” with something.

I shall now deal with the next subsection, if Madam Deputy Speaker will allow me. Subsection (5) deals with the burden of proof. The existing legislation under section 232B of the 1992 Act contains no subsection (5), so this would be a new insertion into the original provision. Subsection (5) states:

“In any proceedings in which reliance is placed on this section, any failure to comply with a provision mentioned in subsection (2) is to be treated as meeting the terms of subsection (1)(b) unless the contrary is proved.”

In simple terms, that means that the burden of proof is being placed completely on the employer, who will have to prove this novel concept of what constitutes “substantial compliance”. As has been said this morning, that arrangement is entirely the wrong way round. It is and has always been incumbent on the trade unions to show that they are complying with the requirements of the law, because it, unusually, exempts them from the liabilities that otherwise exist under British law.

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[Mr Nuttall]

I will indeed. I was just dealing with the intervention.

[Philip Davies]

Although my hon. Friend the Member for Dover is right, the category of person that appears to be in danger of being ignored in this debate is not the trade unions or employers but the paying public—the customers. At the end of the day, it is they who are most inconvenienced by all the strike action. Does my hon. Friend the Member for Bury North (Mr Nuttall) accept that if the Bill were to have a Second Reading today, it is not the impact on trade unions or employers that should be at the forefront of our mind, important though that is, but the impact on the customer and the paying public?

[Mr Nuttall]

My hon. Friend is quite right. He has perhaps anticipated my fourth point. I was about to say that fourthly, and perhaps most importantly, there is the question of the paying public, who would be the ones most affected by the changes. I am concerned that if the law is changed, we will see a return to the dark days of the 1970s. I am concerned for my constituents in Bury North—for the working mum who is forced to make last-minute arrangements for child care because teachers have gone on strike; for the small business man who is waiting for a customer’s cheque to arrive, and who faces the ruin of his business because the postmen have gone on strike; for the taxi driver who needs to renew his licence, and faces the loss of his livelihood because he is preventing from renewing it because the officials in the town hall are on strike. I could go on and on; there are so many categories affected. Earlier, we touched on the family who save for, and look forward all year to, the one holiday that they have, and who are then denied the opportunity to go because one small group of workers has withdrawn its labour and gone on strike.

The law as it stands cannot be that difficult to comply with. The 2009 “Annual Abstract of Statistics” issued by the Office for National Statistics has details of how many working days were lost through labour disputes by industry in 2009. It shows that in transport, storage and communications, 657,000 working days were lost. In public administration and defence, 325,000 working days were lost. The figure was 31,000 in education; 16,000 in manufacturing; 5,000 in health and social work; 4,000 in other community, social and personal services; 2,000 in construction; and 2,000 in other industries and services. So it is not impossible to comply with the law as it stands. All those industrial disputes were able to proceed, quite lawfully, under current legislation.

Let me conclude by saying that the Bill risks taking the trade union movement back to the 1970s and ’80s. I submit that it represents a huge missed opportunity to modernise the trade union movement. It tries to simplify existing legislation, but it runs the risk of creating new uncertainties. It introduces the concept of “substantial compliance”; and, as I say, lawyers must be rubbing their hands with glee at the thought of spending more time in court. Those words would have to be tested in the courts, because we know nothing of what they actually mean.

The Bill does nothing about the underlying problem that it seeks to solve. It does nothing to help the trade unions, or those engaged by them, to conduct the ballot in accordance with the letter of the law. After all, the issue is the will of Parliament and ultimately, therefore, the will of the people. The level of compliance is set where it is because that is where the public want it to be. For the sake of hard-working families who fear having their everyday lives disrupted by a return to the disastrous days of some three decades ago, we should not allow the Bill to proceed.

Having considered the merits and principles of the Bill, I am not persuaded that it is a sensible way forward. I am not convinced that the changes it seeks to make would, in any way, shape or form, improve on the existing law. Indeed, I would respectfully submit that the provisions would introduce a whole new area of uncertainty into trade union law, and that would be bad not just for the trade unions and employers, but for our economy. In short, it would be bad for Britain. For all those reasons, I propose voting against the Bill, and I urge the whole House to do likewise.

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[Philip Davies (Shipley) (Con)]

It is a pleasure to participate in the debate. I congratulate the hon. Member for Hayes and Harlington (John McDonnell) on getting off the blocks more quickly than anybody else and having his private Member’s Bill debated on the first available day. I am probably slightly more generous than my hon. Friend the Member for Dover (Charlie Elphicke) in that, even though I do not agree with the Bill, I think that the hon. Gentleman is perfectly entitled to introduce legislation that he feels is important to him and his constituents. However, I share my hon. Friend’s frustration that that means that more worthwhile private Members’ Bills could be sidelined today. That is extremely unfortunate.

I would say in passing, Madam Deputy Speaker, that although it is good to see you in the Chair, it was a great pleasure to see Mr Speaker in the Chair for the start of the debate. Recently, it had got to the stage when the Speaker was rarely seen on a Friday for private Members’ Bills, but his appearance today shows how important such Bills are to Parliament. I hope that you, Madam Deputy Speaker, will pass on my thanks to him for giving Fridays the respect they deserve by attending the start of the debate.

I was disappointed that the hon. Member for Hayes and Harlington and his hon. Friend on the Front Bench, the hon. Member for Llanelli (Nia Griffith), decided to take a novel approach to debates in the House by not wanting to take interventions. The House of Commons is not a lecture theatre but a debating chamber, and often during debates and through interventions we can tease out the strengths and weaknesses of legislation. I hope, therefore, that that trend will not be repeated in future weeks and debates on private Members’ Bills. I found the opportunity to intervene, and the reply given was actually quite informative, so I say to the hon. Lady that taking interventions in a debate is to be commended, because it allows us to tease out the issues.

[Mr Nuttall]

Had interventions been taken, we might have got on a lot more quickly this morning, because we could have got answers to some of the questions I raised. Instead, we were left hanging in the air. Had the hon. Member for Hayes and Harlington (John McDonnell) taken one or two interventions, we would not be in this position, because he would have been able to deal with those matters straight away.

[Philip Davies]

I tend to agree with my hon. Friend. As it happens, I am a fan of the hon. Member for Hayes and Harlington, who is a great parliamentarian. However, it was rather uncharacteristic of him to make it abundantly clear at the start of his speech that he did not want to take any interventions. My hon. Friend pointed out that he had not provided a definition of substantial compliance in the Bill, which made it all the more unfortunate that the hon. Gentleman started by saying that he did not want to take any interventions, and woe betide anyone who tried to intervene—that was the gist of his starting point—because otherwise we might have been able to ask him what he thought substantial compliance meant. That might have shed some light on the matter.

[Andrew Bridgen]

Is not the reason why the hon. Member for Hayes and Harlington (John McDonnell) did not take any interventions in his opening statement that he did not have any answers to the interventions that were coming? As we have shown today, this Bill has more holes in it than a Swiss cheese.

[Philip Davies]

There may be an element of truth in what my hon. Friend says. The hon. Member for Hayes and Harlington tried to describe the Bill as a simple and non-contentious piece of legislation that, really, nobody could possibly quibble with, and it was helpful to him in presenting that case not to take any interventions, so that none of the flaws in the Bill could be exploited.

[Nick de Bois (Enfield North) (Con)]

Perhaps the hon. Member for Hayes and Harlington (John McDonnell) regarded his view—and his view alone—as substantive and sufficient grounds to go along with the Bill. I think we have demonstrated that that is not necessarily so wise.

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[Philip Davies]

My hon. Friend is right. One of the things that I have learned in my short time in Parliament is that those on the Labour Benches tend to be very intolerant of anybody who holds a different opinion from theirs. I do not think that is particularly sensible in a parliamentary democracy.

It is a great pleasure to follow my hon. Friends the Members for Dover and for Bury North (Mr Nuttall), who both made tremendous contributions to this debate. I particularly want to commend my hon. Friend the Member for Bury North on his bravura performance in filleting the Bill and pointing out its many flaws, which hon. Members on both sides of the House were perhaps not aware of until he made his contribution. When I was first elected to this place, my mentor in Parliament was the late, great Eric Forth, the former Member for Bromley and Chislehurst. It is fair to say that he will be smiling down on us after the performance that my hon. Friend has given today, in the knowledge that his memory lives on in another guise. My hon. Friend should be extremely proud of the contribution that he has made to this debate.

As it happens, I perfectly understand the frustration felt by the hon. Member for Hayes and Harlington and his motivation for bringing the Bill forward. On the face of it, I understand why some trade unionists in the cases that he identified—he quoted a couple of cases that were illuminating, and I want to touch on that later—felt that although a substantial majority were in favour of strike action, they had been thwarted by their employers through the courts on a technicality. His Bill is an attempt to deal with that problem, and I certainly understand his motivation. However, I think that he is misguided, for a number of reasons, and I want to explain why.

I want to start by simply looking at the Bill from the hon. Gentleman’s perspective of wanting to do the best for his friends in the trade unions, by trying to enable them to pursue strike action more readily when they feel that it is in their interests to do so. The first reason is the one that my hon. Friends the Members for Dover and for Bury North both mentioned, which is the fact that we are now getting some clarity in the original law. Given that the hon. Gentleman has received a favourable verdict from the Court of Appeal, it seems bizarre that he should want to rip up the law that delivered that favourable judgment and start all over again. I hope that, when he sums up the debate, he will explain why he does not accept the favourable judgment of the Court of Appeal, and why he wants to start all over again, with all the uncertainty that that brings. I cannot see any logical reason for doing that. Perhaps his decision to introduce this private Member’s Bill was made before the Court of Appeal’s verdict, in which case perhaps he might wish to reflect on whether it is now surplus to his requirements.

I do not believe that the Bill addresses the frustrations of the trade unions. The problem in some previous cases has been the wording of the law, and its interpretation, but the law does not need to be completely ripped up. It simply needs clarification or very minor tweaking. My hon. Friend the Member for Bury North pointed out that the current legislation requires unions to provide employers with notice of ballots on industrial action, and to provide exact numbers, workplaces and categories of those to be balloted and their addresses. It also states that any errors must be

“accidental and taken together are on a scale which is unlikely to affect the result of the ballot”.

That is the law as it stands.

As we have rather helpfully teased out in the debate, the existing law does not state that the errors should be accidental or on a scale unlikely to affect the result of the ballot. I think that this is the point that the hon. Member for Hayes and Harlington was trying to make. He and the unions seem not to like the fact that the existing legislation provides for the fact that the errors must also be accidental. All the focus has been on the fact that mistakes were on a scale unlikely to affect the result of the ballot and that the strike action should have been allowed to continue on that basis alone. He did not seem to like the fact that court was also including the test of whether the mistakes were accidental, as the law currently requires. We can argue about whether that is a good idea, but I suggest that he would be far better off simply making a small amendment to the existing law, replacing the word “and” with the word “or”. That would appear to solve his problem.

I do not particularly agree that we should change the law in that way, because I believe that the current provision is a good one, but from the hon. Gentleman’s perspective, he needs only to make a very small change to deliver what he and his trade union want. It would be much more sensible and simple for him to go down that route.

[Charlie Elphicke]

Picking up on that point, I would not want the House to think that I intended any personal disrespect to the hon. Member for Hayes and Harlington (John McDonnell), who has brought the Bill to the House with the noblest of intentions. My frustration, as a new Member, is that we might lose the rest of today’s business because we cannot vote against this measure in the way that should be possible. I put it to my hon. Friend the Member for Shipley (Philip Davies) that the previous Government did not always listen to the hon. Member for Hayes and Harlington or give him the respect that he deserves, and I hope that the new Government will listen to his proposals in greater detail, and not simply knock them out of court, so that they can be adopted and bring new clarity and certainty to trade union law.

[Philip Davies]

I am grateful to my hon. Friend for his intervention. Anyone who knows him will know that he would never intend any discourtesy to anyone, and I had certainly taken that as read, but I am sure that the hon. Member for Hayes and Harlington will be grateful to him for that clarification. My hon. Friend certainly did not need to explain that to me, however; knowing him as I do, I know that he would never be discourteous to anyone on either side of the House.

There are simpler ways for the hon. Member for Hayes and Harlington to pursue his campaign, although I would not necessarily endorse them. Part of the hon. Gentleman’s frustration is not to do with the law as it stands. How could it be? As we have explored, the Court of Appeal agreed with his particular standpoint. He cannot therefore have any quibble with the law as it stands. I think the hon. Gentleman’s real quibble is with judges who grant injunctions and the basis on which they do so.

The hon. Member for Hayes and Harlington certainly needs no advice from me—neither does anybody else for that matter—and I am sure that he will not take it, but I am certainly prepared to give it to him free of charge. My suggestion is that he start a campaign around the whole issue of judicial injunctions. What tends to happen when people seek an injunction from a judge—not just in this case, but in other cases, and we often see it in libel or privacy law—is that everything happens very quickly. That is why people seek an injunction—because something is about to happen very quickly. It might be a strike action within a day or two, or a story being printed in a newspaper that is going to have very damaging effects on somebody’s reputation. That is why an injunction is sought at very short notice.

On what basis should a judge be able to grant an injunction? That is the issue. Let me deal with what happens when people seek injunctions. I feel rather nervous about making these points when I am surrounded by so many esteemed people from the legal profession. As a non-lawyer, however, let me clarify my observation of what happens. Because something is going to happen that could have a devastating effect—on a business, on customers or on somebody’s reputation—judges are, in effect, risk-averse. If something is about to happen—an article to be published, a strike to take place—and there is some uncertainty over the law, a judge cannot go back and change the law to stop it happening. What judges quite understandably do is to take a risk-averse view. They feel that the law might need some clarification and it is not entirely clear whether something is legal or illegal, so they adopt the risk-averse option of granting an injunction on the basis that a court can overturn the injunction later. If an injunction is not granted, something cannot be stopped from happening after it has happened. That is why I think the hon. Gentleman might want to pursue the whole area of injunctions and the level of proof or certainty judges need before they can grant them. I believe that that would help his side of the argument; it would certainly be more helpful than promoting this Bill.

[Mr Nuttall]

Let me explain why my hon. Friend’s point is a good one. When asked to grant an interlocutory injunction, the courts will by definition have to act very quickly, as he says. They do not have the time to consider all the evidence in detail, so if there is a prima facie case to grant an injunction, they will grant it—without looking into the merits of the case. My hon. Friend is quite right about that. This is perhaps the root cause of the Bill and the real concern that it addresses.

[Philip Davies]

I am sure that my hon. Friend is right. He got rather technical during the course of that intervention, at which point it went beyond my capabilities. The bit that I understood, however, I certainly agreed with. Knowing my hon. Friend as I do, I am sure that I would have agreed with the bits that I did not understand. I therefore commend whatever my hon. Friend said to the hon. Member for Hayes and Harlington who, having a greater intellectual capacity than me, will have understood everything that my hon. Friend said.

[Charlie Elphicke]

One oddity about injunctions is their application to Members of Parliament. They are very hard to enforce, given the freedom from civil arrest that we enjoy. Does my hon. Friend agree?

[Philip Davies]

I am being tempted by people who are more expert in the law than I am to comment on matters that they know far more about than I do. My hon. Friends can take it as read that I agree with them on any matter with regard to the law, because they are in a far better position to argue their case than I would be.

I am still warming to my theme of how the intentions of the hon. Member for Hayes and Harlington can better be advanced. His supporters in the trade union movement also take exception to the definition in legislation of “accidental”. We can all probably accept the definition of making a difference to the result. If a certain number of ballot papers were affected, all of which voted one way, but the result would not have changed, the wording in the current law of,

“on a scale unlikely to affect the result of the ballot”

is perfectly clear. From that starts the frustration.

The issue is the “accidental” point. If the hon. Gentleman attacked that problem, as he sees it, by instilling some definition of “accidental” in the Bill, his supporters might find that a more fruitful way forward. In the case of BA, which he quoted most during his speech, the judge, summing up his ruling to grant an injunction, said:

“I do not consider that there is evidence capable either of establishing that UNITE held a reasonable belief in the entitlement to vote of all its members, or enabling it to rely on an ‘accidental failure’ within section 232B.”

The point that Unite was making was that any failings in its ballot were unintentional, and that that met the definition of “accidental”. The judge said in his conclusion:

“In my judgment, an unintentional failure, as it was categorised by”—

Unite—

“in the circumstances of this case, cannot be regarded as an accidental failure within the meaning of that section, even applying a purposive construction to its provisions.”

Therefore, the problem for Unite was that it did not get over the first hurdle of “accidental”. The problem was not, as the hon. Gentleman said, in relation to the test of

“on a scale unlikely to affect the result of the ballot”—

the judge did not even get to that—but that, as far as the judge was concerned, Unite had not got over the “accidental” hurdle. The hon. Gentleman’s unhappiness with the existing legislation can be only with the definition of “accidental”. If he wishes to move things forward, from his perspective, I suggest that he do so by instilling a definition of “accidental” that meets his requirements.

[Mr Nuttall]

My hon. Friend makes the point, which was touched on earlier, that the way around the problem, with which the judge had to deal when considering the case, relates to the current provision’s use of the word “and”. If the Bill were to introduce the word “or”, one could easily understand the rationale for it.

[Philip Davies]

rose—

[Madam Deputy Speaker]

Order. I think that the hon. Member for Shipley (Philip Davies) has already made that recommendation about how the Bill could be better drafted. We might be repeating the point.

[Philip Davies]

It is a red letter day for me, Madam Deputy Speaker, because I have just found out that you were listening to my speech.

[Madam Deputy Speaker]

Order. May I say, Mr Davies, that I listen to every Member of the House’s speech, and I particularly listen when you are speaking. As you are such an accomplished parliamentarian, it behoves the Chair to concentrate.

[Philip Davies]

You are very kind, Madam Deputy Speaker. It really is a red-letter day now. I shall put that in the literature I will distribute at the next election. However, what surprised me was not just that you were listening to my speech, but that anyone was listening to it. I am afraid that my experience is usually otherwise.

I hope that the hon. Member for Hayes and Harlington will accept at least some of my suggestions of alternative ways in which to promote his side of the argument.

[Jacob Rees-Mogg]

I too have been listening to my hon. Friend’s speech with great interest. Does he believe that the Bill could be amended in Committee, or does he think that we should vote it down and kill it off as early as possible?

[Philip Davies]

I am grateful to my hon. Friend. I hope that I shall have the pleasure of listening to his own speech today, because I enjoy his speeches immensely.

I intend to develop this point further, but my direct answer to my hon. Friend’s question is that I believe we should vote against the Bill. I do not think that any of my suggested alternatives could be incorporated into an amendment, because the Bill goes off at a tangent to them.

At the beginning of his speech, the hon. Member for Hayes and Harlington said that, although others might perceive flaws in the Bill, it should proceed straight to Committee, where any such flaws could be ironed out. That strikes me as an argument for never giving a Bill a Second Reading. As my hon. Friend the Member for Bury North helpfully pointed out, the Bill has two clauses, and given that both appear to contain flaws, I do not think that amending them in Committee is an option. We should try to vote them down and start again from scratch. The fact that I have given advice to the hon. Member for Hayes and Harlington does not mean that I would agree with any of the amendments that I have suggested should he introduce them; I merely think that they would help him to deliver what he wants to achieve.

In deciding whether to approve the Bill, we must also decide whether it is necessary. It was, I think, my hon. Friend the Member for Dover who suggested that it was a solution looking for a problem. I hope that when he sums up his argument, the hon. Member for Hayes and Harlington—with his court verdicts in the bag—will tell us what problems the Bill solves, because all the evidence that he gave earlier involved problems that have now been cleared up by the Court of Appeal. It would be helpful if he told us about any current problems of which he is aware, because it seems to me that the Bill is wholly unnecessary.

[Charlie Elphicke]

Does my hon. Friend agree that the errors in the Bill, although themselves minor, prevent us from supporting it today, and that we should enjoin the hon. Member for Hayes and Harlington to work positively with the Government to find a way of dealing with his concerns? That would enable the trade unions’ own concerns to be taken on board properly, would enable us to vote on them properly if it were found that the law needed to be changed, in Government time, and would ensure that account was taken of any merits in the hon. Gentleman’s argument. His Bill might then actually hit the statute book.

[Philip Davies]

I am sure that my hon. Friend is right. As it happens, I am content with the law as it stands. I shall be interested to hear what the Minister has to say. I do not know what he will say and I do not want to pre-empt it, but I hope he will say that the Government have no intention of changing the current law, because, as the court has ruled, it is perfectly adequate. I am sure that the Government will always work closely with any Member if they feel that an injustice needs to be corrected, but I am not sure that that is the case in this instance.

[Mr Nuttall]

On 21 June 2010, the BBC carried a report headlined “Government shuns call to change strike laws”. The report said the Government had indicated that there were “no plans” for alterations in the law on industrial action. That might help my hon. Friend. It will be interesting to see whether the Minister has changed that position.

[Philip Davies]

That is helpful and I am grateful to my hon. Friend for his intervention. Knowing the Minister as I do, I am sure that his position has not changed in the short time since then, because he is a very solid chap who would not change his mind so loosely and so quickly. Therefore, we need not worry about that, but we will listen with interest to what he says.

It is important to note that the original legislation that the Bill tries to change—the Trade Union and Labour Relations (Consolidation) Act 1992—gave protection to trade unions; it was not anti-trade union. Some of its provisions protect the rights of workers in a union that takes action, if necessary by striking, to defend and support their interests when reasonable notice is given and in contemplation or furtherance of a trade dispute. The Act protects the rights of workers to organise in or leave a union without suffering discrimination or detriment. It also defines trade unions and states that they are subject to legal rights and duties. It provides a framework for unions to engage in collective bargaining for better workplace or business standards with employers, so the thrust of the legislation already on the statute book should be welcomed by Opposition Members.

On the proposals of the hon. Member for Hayes and Harlington, the Institute of Employment Rights states that the purpose and effect of the Bill is to ensure that small accidental failures in ballots will be disregarded. I am not entirely sure that that is entirely the case, because my understanding of the existing legislation is that it does just that—it provides that small accidental failures in ballots will be disregarded. That is the wording of the existing legislation. The hon. Gentleman is trying to change it so that, so long as unions have demonstrated substantial compliance, such failures will be disregarded.

In passing, I wonder about the titles of Bills, because they often seem to contradict completely their supposed purpose. For example, the Equality Bill was about all sorts of things but it certainly was not about equality. The Bill that the previous Government introduced to restrict jury trial should have been called the “We think the public are thick Bill”. We should have some honesty about what Bills are trying to do. This Bill is called the Lawful Industrial Action (Minor Errors) Bill, but it seems that it is not trying to stop minor errors being taken into account, as the law already does that; it is trying to allow unions to be able to make some major errors in the ballot and have those disregarded, too. If the hon. Gentleman ignores all my earlier advice, which I am certain he will do, and brings back the Bill at another date, if he does not manage to get it through on this occasion, I will ask him for the sake of clarity to change the title to the Lawful Industrial Action (Major Errors) Bill because then we might have a better idea of what we are dealing with.

The Institute of Employment Rights also claims that minor errors in the information about the result of the ballot will be disregarded and forensic examination of procedures will end. That will worry people. The institute says that the forensic examination of procedures of unions carrying out their ballots will end and be replaced just with the concept of substantial compliance. I am not sure that the hon. Gentleman is renowned for having a laissez-faire attitude to things, but he certainly has a laissez-faire attitude to the running of ballots if he does not think that forensic examination of the procedures involved in the running of a strike ballot should be taken into account.

As we have heard, the burden of proof in injunctions will shift in that evidence will be required that substantial compliance has not taken place. How on earth can we expect the employer to carry out that burden-of-proof task of saying whether or not a union ballot was substantially compliant? Others have made that point, but it has to be emphasised because, clearly, only the union itself can demonstrate whether the ballot was substantially compliant. How on earth can the employer make that decision when they have had no control over the running of it and do not have the necessary information? In the speech of the hon. Member for Hayes and Harlington? I heard no explanation of how on earth an employer could be expected to do that. I suspect that that is because the hon. Gentleman knows that the employer could not possibly do it, and that therefore this is a tactic to ensure that the employer will never be able to stop any kind of strike action because they will never be in a position to do so. I hope that in his summing up the hon. Gentleman will give some examples of how he thinks employers would be able to demonstrate clearly that a ballot has not been substantially compliant.

Even though the original legislation was passed in 1992 by a Conservative Government—for the purposes that I have outlined—it was amended twice by the previous Labour Government, in 1999 and in 2004, and, as my hon. Friend the Member for Bury North (Mr Nuttall) made clear, the provisions the hon. Gentleman does not like were supported by his party when it was in government. I have not researched this, and I would not want to embarrass anybody in particular, but I certainly hope the hon. Gentleman did not at that time vote for those proposals in a Bill that he must have thought was completely unacceptable. It would be interesting to discover how many of the Members who voted for it in 1999 are today up in arms and complaining that this is an unacceptable piece of legislation, because they seem to be complaining about their own legislation.

The Labour Government amended the legislation twice, therefore: in 1999 and again five years later. They had acquired five years of evidence of the workings of the legislation before they changed it for the second time, yet they did not take the opportunity to introduce the change the hon. Gentleman proposes. I can only presume that they did not do so because they thought the legislation was working perfectly well, and I venture to suggest that the situation is the same now.

The unions also argued in their earlier court cases that the current legislation was contrary to article 11 of the European convention on human rights. I am not a lawyer—and I am certainly not a human rights lawyer as I do not like the Human Rights Act and I would like it to be scrapped—so I do not know whether the unions are right. However, if the hon. Gentleman thinks the existing legislation is incompatible with that convention, his union members can take their case to the European Court of Human Rights. If he is right, they are therefore already protected in law. If he and the unions are absolutely certain that it contravenes the European convention on human rights they do not need to change the law through this Bill as they can be safe in the knowledge that the convention, which we are signed up to and which is enshrined in our legislation through the Human Rights Act, is in place.

It needs to be made clear at the outset that this Bill has some vehement opponents, ranging from think- tanks and the esteemed Mayor of London to the CBI. I believe that it was my hon. Friend the Member for Dover who said we are relying on business to get us out of the financial mess that we are in. We need the private sector to be flourishing, so we should take note of what it says with great interest. All those opponents argue that the balance of power between trade unions and employers has shifted too much towards the unions over the past 13 years. That touches on a point made by my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg), who said that perhaps we ought to be looking not at giving further powers to the trade unions and shifting the balance even further towards them, but at whether or not there should be greater regulation of the industrial action that is causing so much damage to our economy. He asked whether we should be considering that, rather than making such action easier.

The points that the hon. Member for Hayes and Harlington made seemed to suggest that his Bill was based on two cases. I could mention other cases, but I do not wish to detain the House unduly by going through all of them at length, as that would be unnecessary. The two cases that his remarks concentrated on were Network Rail v. RMT and British Airways v. Unite. I just want to touch on those cases and the reasons why they are not a good basis on which to introduce this Bill.

[Mr Nuttall]

I just want to clarify things so that we are talking about the right judgment. There are two cases with the same title and the only way of differentiating them is by the name of the judge involved, so is the British Airways case that my hon. Friend is referring to the one dealt with by Mrs Justice Cox, which I believe was the first one, or the second case, which came before Mr Justice McCombe? Will my hon. Friend be discussing both cases or just one?

--- Later in debate ---

[Philip Davies]

I am grateful to my hon. Friend, who is, as ever, on the ball. He has just demonstrated to the House how knowledgeable he is on these matters and he rightly says that there are different cases. Either case makes the point, but I am sure that the House will be happy to benefit from his expertise on both if the need should arise and there is any further confusion. I believe I am right in saying—he will correct me if I am wrong—that in the case of Network Rail v. RMT the dispute was largely over safety. So far as I can tell, the case was not about an employment matter, because the signallers were not subject to any proposals for staff redundancies—it is not as if their jobs were being threatened—and the RMT was complaining about a safety issue.

The hon. Member for Hayes and Harlington gave the impression, to me at least, that these cases were clear-cut victories for the unions in terms of their recommendation for a strike and that there should be no impediment to that democratic process being applied. I have to take issue with that initial premise, because the result of the ballot in the case of Network Rail v. RMT was that 3,199 votes were cast, 1,705 of which were in favour of strike action and 1,481 of which were against, with 13 spoiled papers. Therefore, the majority was just 224. I do not know whether or not my hon. Friends would say the same, but I was not originally given the impression of that margin of victory in the speech made by the hon. Member for Hayes and Harlington. He seemed to imply that there had been an overwhelming vote for strike action.

Before we get on to the niceties of why the unions fell foul of the law and why it is right that they fell foul of the law, as it stands, we must take into account—I think that the law should take this into account—the effect of strike action, if it were to go ahead, on the employer, on the economy and on the general public. That should be a factor in determining whether an injunction is granted. If it is going to have a disproportionate effect, we would want the judiciary to be risk-adverse in deciding whether to grant an injunction.

According to Network Rail, the cost of the strike action would have totalled about £20 million. That is a substantial amount of money and it was perfectly right that a judge should insist that everything was done rightly and properly, all above board, before action with such a financial impact on a business—on the taxpayer, I might add—was proceeded with. In the court papers, Network Rail claimed—the RMT did not dispute this, so we can safely say that we are on firm ground—that the strike action would have had the effect of preventing 80% of all rail services in the UK from running. That would have had not only a devastating effect on Network Rail as an industry but a massive effect on many employers, businesses and people who rely on getting about by rail to fulfil their daily duties.

The hon. Member for Hayes and Harlington might think that the RMT had a perfectly legitimate complaint against Network Rail that Network Rail was being irresponsible. That might or might not be true, but I am not entirely sure what grudge the RMT has against businesses, commuters and shoppers up and down the country, who would have been negatively affected by that action. I am not entirely sure why they should be penalised for any actions by Network Rail that the hon. Gentleman disagrees with, but that is the impact that the strike action would have had. The RMT union did not dispute that in the court case. It is perfectly proper that a judge should consider the impact on other people when bearing in mind whether to grant an injunction. Network Rail made it clear that a strike would have caused immense damage to the economy, to businesses that depend on rail for freight or transport, to commuting workers and to a great many individual rail users.

[Nick de Bois]

I thank my hon. Friend for being so generous in giving way. In effect, we have a situation in which every cause will have an effect. My hon. Friend outlines admirably the fact that in this case, if the processes are not followed and a strike subsequently takes place, many people outside the immediate target of the strike action are affected. They have no recourse. They have nowhere to go. When I was running my company, we were in the unfortunate position of having to make a small number of redundancies. We had to go through—and rightly so—a strict but nevertheless somewhat burdensome process and, as a result of a minor technical error, there was the right for redress for those involved. It strikes me that in this situation, the process should be adhered to as strictly as possible because there is no form of redress for those outside the immediate consequences of the action. Does he agree?

[Philip Davies]

I very much agree with my hon. Friend. I know that he is a great advocate for rail commuters in his constituency—he has even had Westminster Hall debates on the problems that his commuters face. He is a great champion for his constituents and I agree with him. This is a very interesting point. If the hon. Member for Hayes and Harlington wants to make it easier to have strike action, perhaps, as a quid pro quo, he might consider what my hon. Friend the Member for Enfield North (Nick de Bois) says and introduce into his Bill a provision that some statutory consultation must take place with all affected parties before any strike action, so that people can understand the full consequences of that action. It might well be that when a union decides that it wants to go out on strike because of a grievance with a particular employer, it does not take into consideration the wider impact it will have on innocent third parties who are no part of the dispute at all. My hon. Friend makes a very good point—perhaps that is an anomaly that should be addressed in legislation. I hope that the Minister was listening carefully to his intervention, because he is in a far better position to do something about that than I am. It is certainly worth considering.

[Mr Nuttall]

I am not sure that my hon. Friend has picked up on exactly the right point. I thought that my hon. Friend the Member for Enfield North (Nick de Bois) was making the point that if the novel concept of substantial compliance is introduced with regard to the balloting procedure for industrial action by trade unions, surely it would be right, fair and sensible to introduce a similar provision in the legislation relating to redundancies. Has my hon. Friend the Member for Shipley (Philip Davies) had any representations on what the unions would think if that were the case—if an employer needed only to comply substantially with the law when making people redundant?

[Philip Davies]

My hon. Friend makes a good point. He turns the argument on its head: he says that rather than giving unions more arduous responsibilities so that they have to meet the same demands as employers, perhaps employers should be given the liberty to take the more flexible approach that the Labour party clearly wants to give to trade unions. Whichever way we consider it, it is perhaps unarguable that they should both be subject to the same treatment.

My hon. Friend is right to concentrate on substantial compliance, because it is, in many respects, a nonsensical concept to introduce into law. Virtually anybody could claim, when they flouted the law, that they were substantially compliant with it. If we extended the concept right across the criminal justice system, we would probably find that nobody could ever be found guilty of anything, because they could easily demonstrate that they were substantially compliant with the law—they had broken just one part of it. The hon. Member for Hayes and Harlington should go back to the drawing board and think again about whether he wants to introduce the concept of substantial compliance in law.

Let me come back to the point that I was making about the impact that the strikes would have had if they had gone ahead. Three million passengers and freight users would have been affected, and the strike would have coincided with the first day back at work after the Easter holidays. That would have had a devastating impact. It is true to say that Network Rail had a robust contingency plan in place, but this comes back to the point that my hon. Friend the Member for Bury North (Mr Nuttall) made about the importance of giving notice to employers, so that they have an opportunity to mitigate the worst impacts of strike action.

Even with that robust contingency plan in place, Network Rail could have run only approximately 4,500 trains on the day of the strike action; the normal figure is 24,000. We are talking about 20% of the service running, and 80% not running. Some of the most important lines into the capital would have run at just 11%. That would have had a devastating effect on the economy of the country, and it is right that judges take that into consideration.

Turning to why the injunction was granted by the courts, as my hon. Friend the Member for Bury North said, minor errors are already covered by the existing legislation. I have already outlined the relatively narrow margin of victory in the vote for strike action. Most people would consider some of the errors to be not minor at all; I think that some people would consider them to be rather more major. Network Rail successfully argued that there were serious errors made in the balloting of members. For example, 11 signal boxes that no longer exist were balloted, including East Usk in Newport, Gwent. The RMT balloted it to gather the votes of six registered voters, although it had burnt down in a previous year. That is not a minor error—it is quite a serious error.

[Mr Nuttall]

I have to come back to this point: bearing in mind that the Bill also seeks to transfer the burden of proof to the employer, if the union does not know where its own members are employed, it is a bit rich to turn the law around and expect employers to do the job that we are talking about. In the case that my hon. Friend mentions, even the trade union could not get its notices sent to the right place.

--- Later in debate ---

[Philip Davies]

That is a fair point, and one might legitimately ask the RMT how close it is to its members when it balloted a signal box that burnt down years ago. It does not give one much confidence that the union has a close working relationship with its members.

People may forgive the RMT for not knowing that the signal box at Pelham in Lincolnshire was demolished in 2008 or that the signal box at Ascot in Berkshire was closed in October 2009. People might ask how the union could be expected to know these things—although I would presume that it should know. However, it is surely difficult for it not to be aware that the signal box at Chalford in Gloucestershire closed down in 1966. One would have thought that the union would have been aware of that. Nor should it have overlooked the fact that the signal box at Northallerton in North Yorkshire closed in 1980. I personally think that those are rather serious errors, not the minor errors that the hon. Member for Hayes and Harlington suggests when he uses the case as a reason why the law should be changed.

The problems were not confined to signal boxes that were closed down 44 years ago. In 67 locations, the number of RMT members balloted exceeded the total number of employees. I do not know what the rate of union membership is among the staff of Network Rail, but I would be astonished if it were more than 100%. But that is what the RMT seems to think. A further 26 places, with up to 100 employees, were missed out completely, including the key signal box at Rugby. As we have heard, the difference in the vote between those who voted for strike action and those who voted against was 224. It is therefore difficult to argue that the examples that I have given—of the balloting of signal boxes that had burnt down or been closed, of ballot returns of more than 100% and of the failure to ballot some locations—were not material factors that should have been taken into consideration. Those are substantial errors that could have made a material difference to the result.

[Jacob Rees-Mogg]

It occurs to me that if the Bill were enacted and then used too widely, it would allow malevolent people to use it to push through something against the will of their members and then claim that only minor errors had been made. That would be a slippery slope.

[Philip Davies]

My hon. Friend is right, and we should guard against that. I do not think that the hon. Gentleman wants to exempt minor errors, which are already protected. He wants to exempt major errors from the scrutiny of the courts and we should be very wary of doing that.

In 12 locations, there were no operations staff and workers were clearly ineligible to vote—

[Andrew Bridgen]

I thank my hon. Friend for being so generous in giving way in this most interesting debate. Does he agree that the Bill is not merely a Trojan horse but a wolf in sheep’s clothing, and an attempt to legitimise electoral errors—I am being generous in calling them “errors”—that would disgrace a banana republic?

[Philip Davies]

My hon. Friend is right. That is why I am so disappointed that the hon. Member for Hayes and Harlington made it abundantly clear from the outset that he did not want to take interventions. He has left the impression—rightly or wrongly—that he was trying to portray a small change in the law to clear up a small anomaly, and that no one could argue with that because it was all common sense. However, when one gets to the nitty-gritty—

[John McDonnell]

claimed to move the closure (Standing Order No. 36).

[Mr Deputy Speaker (Mr Nigel Evans)]

Ideally, I would like to hear from the Minister before I accept that motion. I understand, Mr Davies, that you have been entertaining the House for 59 minutes. It is a red letter day for all of us, and we are clearly gripped by everything that you are saying, but if you are now able to bring your remarks to a close so that the House can be informed of the Government’s position on the Bill, I would be extremely grateful.

[Philip Davies]

I think that that is a sensible way forward, because we all want to hear what the Minister has to say. I will toss away the Network Rail arguments if you will give me permission, Mr Deputy Speaker, to touch on the British Airways dispute, because the hon. Member for Hayes and Harlington spoke about that most of all.

The hon. Gentleman made it clear that the errors that were made may not have made a material difference to the result of the ballot in the BA dispute, but they were clearly not deemed accidental. We should have some protection in law for employers who face strike action by people who have not followed what the law requires of them. The law is not particularly onerous. As my hon. Friend the Member for Bury North said, many strikes take place throughout the country every year—far too many already happen. It is not difficult for people to take strike action. All we expect is that people fulfil their obligations under the law. In the BA v. Unite case, it is perfectly clear that the judge who granted the injunction felt that the errors were not accidental, that Unite should have known or did know about them, and that they should not be deemed minor.

I will conclude to follow your will, Mr Deputy Speaker. I am afraid that the House will have to miss out on the rest of my contribution. [Hon. Members: “Shame!”] I am very grateful to my hon. Friends. I urge all hon. Members not to consider only the simplistic side of the debate and the opportunity that the hon. Member for Hayes and Harlington offers to clear up a small technicality, but to bear in mind the massive impact that the Bill would have on employers and the paying public throughout the country—those who rely on our services. The Bill will be hugely damaging at best. However, even from the hon. Gentleman’s perspective, it is unnecessary and does nothing to help trade unions.

--- Later in debate ---

[Mr Davey]

As I looked in detail at the Bill, I became increasingly concerned. I thought initially that it might be something with which we could engage seriously and examine the possible need for reform. But if one forgets the title and looks at what is actually proposed, one realises that it is a significant attempt to shift the law in a direction we do not want it to go.

[Philip Davies]

The Minister glossed over his last comment too quickly for my liking. Am I right in thinking he said that, as the Bill stands, the union could interfere in the free vote of a few of its members in a ballot but could still argue that it had been substantially compliant?

[Mr Davey]

That is indeed my interpretation. I may have glossed over it because the hon. Gentleman and his hon. Friends made a clear analysis of that point in their contributions. I therefore felt that he had already grasped it, as he does so readily.

We strongly oppose removing the requirement for an error to be accidental. The suggested new disregard would apply to situations in which a union had deliberately denied members the entitlement to vote. It could also apply to a situation in which the union pressurised or coerced some individuals to vote in particular ways. Such behaviours are inexcusable, even if they were to occur on a small scale. They would undermine the democratic principles on which the current law is based. The Government cannot support a provision that could allow such democratic abuse to be excused. We have serious difficulties with the proposal to reverse the burden of proof—[Interruption.]

--- Later in debate ---

[Jacob Rees-Mogg]

The hon. Gentleman is trying to lead me astray. Mr Deputy Speaker asked me not to carry on talking about history, but I disagree entirely with the hon. Gentleman’s point.

On the specifics of the proposals, we have to look at the Bill in its context. We need not go back to the great strikes of early history. I was thinking initially of Achilles sitting in his tent and about whether that was a first example of industrial action and the withdrawal of labour, and about whether we should get on to Patroclus and so on, but I thought that would be too abstruse at this time in the afternoon. However, the Bill is important because it would take us back to the industrial relations of the 1970s and 1980s, so the immediate historical context is of tremendous importance. I remember growing up—I was a child once, although I never normally admit to it. We had a wonderful debate the other day with all sorts of people saying they had once been 16. I sat here wondering whether I had ever been 16 and hoping that it had passed by quite quickly. However, when I was a child, I saw the streets, including Leicester square, used as a dumping ground for rubbish because of strikes. They were strikes that had been called not with any democratic oversight, but because unions had the ability to bully their members.

The great lady, Margaret Thatcher—Baroness Thatcher, Lady of the Garter—came in and pulled this country up by the scruff of its neck. She introduced legislation, which was opposed every time by the socialists—they opposed everything she did—to democratise the trade unions and bring them under the control of their members and to allow this country to be run by its democratically elected Government, rather than by the grand, godfather-like bosses of the trade union movement. Anything that takes us back to those days would be desperately unfortunate and risk our seeing the same number of strikes that we saw in the 1970s and 1980s and the destruction of British industry.

Our car manufacturing was destroyed by strike after strike called from mass meetings. Do hon. Members remember those mass meetings? Do they remember watching them on the television? Do they remember the voice votes controlled by a few bullies? A hand or two would go up, but they would never be counted. That was the type of behaviour we had in this country before the laws that Margaret Thatcher introduced. That put us back on to a proper footing, where prosperity could arise, commerce could take place and business could flourish. We saw the launch pad built for an amazing economic performance that was no longer being destroyed by the trade unions.

[Philip Davies]

Does my hon. Friend agree that there is further to go down this route, and that if we are trying to make potential strike action fairer, which seems to be the purpose of the Bill, we should instead be providing that more than 50% of those balloted, rather than just of those who voted, have to have voted for strike action before a strike is called?

[Jacob Rees-Mogg]

My hon. Friend knows that I have an affinity for thresholds in other circumstances. Obviously, I am not going to talk about that, because it is not germane to the Bill, but I think it right that a sufficient number should express their will for a ballot to be valid, and that while we are debating Second Reading, we ought to think about what else it could have said, had it been a better Bill—a Bill that the House might have liked and approved on Second Reading. It could have contained further reforms to give power back to the members. I actually believe in the slogan used by Baldwin for his election: “Trust the People”. The people are the masters of their politicians, and they know what is best for them, and the greater the democracy in trade unions, the better it is for their members.

I was struck by the Minister’s comments that the Bill would make 15 sections of the Trade Union and Labour Relations (Consolidation) Act 1992 subject to accidental mistakes and a broad interpretation. Does that not make the hairs on the backs of hon. Members’ necks stand up, when they think of what has gone before, and when they think of the possibilities for manipulation and for people to stand over others as they fill out their ballot papers? Perhaps it would be done in the canteen. Perhaps one person would gather everyone together, and if only 20% of the vote went astray, nobody would mind. It would not be substantial; it would be a minor error, a small failing, a little bit on the side.

[Jacob Rees-Mogg]

My hon. Friend is absolutely right. If a union cannot run a ballot properly, that is a disastrous state for that union to be in, but people use the mechanisms to hand. We should always be suspicious—always cautious, always careful—about allowing exemptions, because as soon as we do, people work out how to use them for a purpose other than that which was initially intended. That is why legislation in this place needs to be so properly considered—and considered in due and appropriate detail—because when it is not, people might actually believe the title of the Bill, which I come back to.

As the Minister so rightly said, the title refers to “Minor Errors”. Clause 2 deals with the short title, and although I doubt whether the short title of a Bill should very often be a contentious matter, on this occasion I think that it is. I do not think that the Bill ought to be called the Lawful Industrial Action (Minor Errors) Bill. If passed, it should be called the Lawful Industrial Action (Coach and Horses) Act 2010, because that, as I said in an intervention on the Minister, is what it would do to the law as it stands. The Bill would get rid of so many safeguards, and this House is here to safeguard the British people—our electors—not just from over-mighty government, but from over-mighty private organisations that may wish to use and abuse their power.

[Philip Davies]

On that theme, does my hon. Friend agree that one thing that the Bill does not address is the damages that have to be paid by unions that call for action that is later found to be unprotected? Damages are capped at £250,000 in those cases, whereas the strikes at BA, for example, cost BA £40 million.

[Jacob Rees-Mogg]

My hon. Friend makes an extraordinarily good and wise point. This would have been a better Bill if it had sought to raise that cap and made unions responsible for their unlawful errors.