Trade Union Bill (Fourth sitting)

Stephen Doughty Excerpts

Thursday 15th October 2015 Public Bill Committees

[The Chair]

We will now hear oral evidence from Professor Keith Ewing, professor of public law at King’s College London. This session will run until 2.30 pm. Professor Ewing, could I just outline how we are going to play this? I will ask you to introduce yourself and outline why you are here. It will then become a hearing, with Members from alternate sides asking you questions. Could you be as succinct as possible? I would urge my colleagues to do the same, but it does not always work that way. Remember that the time you are using is the only time you have, so use it well, if you can. Would you care to introduce yourself?

Professor Ewing: My name is Keith Ewing. I am a professor of public law at King’s College London.

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

Q 337337 Professor Ewing, could you set out in a little more detail your experience working on issues around trade union law at a domestic and international level?

Professor Ewing: In terms of my experience?

[Stephen Doughty]

Yes. Your experience, background and qualifications.

Professor Ewing: I have been professor of public law at King’s College since 1989. Before that, I taught at the University of Edinburgh and at Cambridge. I have taught overseas in many countries. I have worked as an adviser to a number of trade unions, both in this country and overseas. I have worked as an adviser to the International Trade Union Confederation. I do a lot of work with the International Labour Organisation in terms of evidence that I prepare and cases that I help to submit. I work very, very closely, I suppose, with the trade union movement.

[Stephen Doughty]

Q 338 Thank you. That is very helpful. Given that level of experience, and looking at the Bill as a whole, where do you feel it falls down or potentially conflicts with both international and domestic conventions and law?

Professor Ewing: I have two concerns with the Bill. The first is the extent to which it is compatible with our treaty obligations. The second, because of my other interest, is the extent to which it is compatible with the constitutional principles, conventions and practices that operate in this country.

As far as the first of those is concerned—international labour treaty obligations—there are a large number of treaty obligations binding this country that relate directly to the provisions of the Bill. I will start with the International Labour Organisation. There are three treaties that are particularly relevant and are binding on this country: conventions 87, 98 and 151. I can go into some detail, if you would like.

[Stephen Doughty]

Q 339 Can you expand a little on where you feel the Bill conflicts with those?

Professor Ewing: Convention 87 is relevant because it deals with the right to strike. The right to strike is not expressly referred to in convention 87, but it has been read into convention 87 by the supervisory bodies over a number of years. One issue that I think arises in relation to the right to strike is the additional requirement of two weeks’ strike notice. There are lights flashing in my head about that. The second issue relates to the thresholds for industrial action, and in particular the 40% threshold for support for industrial action in some sectors. That, too, is beginning to make lights flash in my head about the compatibility with ILO convention 87.

There are two other conventions: 98 and 151, which deal with the question of collective bargaining. Convention 98 applies to collective bargaining generally, and 151 deals specifically with collective bargaining in the public sector. One reason I think there might be problems here relates to the Minister’s announcement after the Bill was published about abolishing check-off in the public sector. I think that will cut across collective agreements and raise questions in relation to 98 and 151.

Another point relates to trade union facility time and the provisions in the Bill, which will give a Minister the right to rewrite collective agreements. That cuts across the idea of collective agreements being voluntary and runs into problems with 98 and 151.

Before I finish, there is the good question of why we should take the conventions seriously. There are two reasons. First, although people were quite indifferent to ILO obligations in the past, the European Court of Human Rights has, since 2008 in particular, begun to pay particular attention to the importance of the conventions in determining the scope and boundaries of the European convention on human rights itself. There was a very important case to that effect in 2008.

Secondly, we are reaffirming our vows to the conventions in the free trade treaties that we are now signing. We signed such an agreement with Korea in 2010, and we are about to sign a free trade agreement with Canada. In these treaties, we commit ourselves not only through the European Union, but as a member state to complying with the international labour obligations to which we have subscribed. The conventions are very important.

[Stephen Doughty]

Q 340 May I ask a specific question about the certification officer? The Bill’s proposals amount to an extensive expansion of the role. We have heard from other witnesses that there is potentially a serious blurring here between the investigating, adjudicating and enforcing of complaints. Does that breach international conventions or domestic principles about natural justice and not blurring such roles in a quasi-judicial position?

Professor Ewing: The certification officer provisions are extremely serious. I say that partly because we have to bear in mind who appoints the certification officer. Under the 1992 Act, the appointment of the certification officer is in the gift of the Minister, so the Secretary of State effectively appoints the certification officer. You referred to powers of investigation, which are deeply troubling because, in a sense, they give the certification officer this extraordinary power where he thinks there is good reason to do so. That is the test. It is where the certification officer thinks there is good reason to do so. They can then embark upon this extraordinary power of investigation to demand documents, to require individuals to co-operate and to require the attendance of individuals at a particular location. The certification officer then has the power to demand that—[Interruption.]

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[The Chair]

Professor Ewing, I apologise for that interruption. Sometimes technology is to blame. One of the first things people do when they get downstairs and outside is light up a cigarette and that can be a bit of a problem. Mr Doughty, would you like to continue?

[Stephen Doughty]

Thank you, Sir Alan. I also apologise for the disruption. Sir Alan, I hope with your agreement it will be okay if we need to go on a few minutes longer.

[The Chair]

I have had a word with Professor Ewing and he says he might be able to finish in the timescale set, but if we cannot, we will continue.

[Stephen Doughty]

Q 341 Thank you, Sir Alan. Professor Ewing, we were talking about the certification officer. Recalling what you were saying, essentially you are worried that a Minister—a member of the Executive—will appoint an individual who is effectively police, judge, jury and executioner with some fairly wide-ranging powers.

Professor Ewing: Let me say, I hope it was not anything I said that led to the disturbance.

My concern with the Bill is, first, these very extensive powers of investigation, which could eventually lead to someone to being imprisoned for non-compliance. What would worry me is what would trigger that process. What triggers the process is the suggestion that the certification officer can take these steps where he thinks there is good reason to do so. Given the nature of the power that has been given to the certification officer, you would be looking for much a higher threshold before powers of that kind could be triggered.

That is the power of investigation, but there is also the power of adjudication, which has been greatly expanded under, I think, what is now schedule 2. The issue is that the certification officer can initiate a complaint, so in a sense he is the complainant. The certification officer as a complainant will bring his or her own witnesses, cross-examine his or her own witnesses and then make a decision in his or her own cause. They will then have a new power to impose a financial penalty.

That seems to me to be a violation of fundamental principles of natural justice, which apply in this case and I refer to in my written submission: fundamental principles of justice rehearsed by Lord Chief Justices as far back as the 1920s. It would certainly contravene the well-established principle of English and Scots law that no one should be a judge in his or her own cause. I think that provision needs to be looked at very carefully again.

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

Q 342 Thank you, Professor, for being here. I want to ask you about thresholds and that part of the Bill. I am obviously not a legal expert on rights, but I think what the threshold provision is trying to do is balance the right to strike—which certainly no one is saying should not exist—with the right of people to go about their ordinary business, send their kids to school, use the trains and tubes, gain access to hospitals and so on. That balancing seems moderate and reasonable. Do you think any weight should be given to the rights of people to go about their ordinary business? Do you agree with the general secretary of the Unite union who, you may have read, has said in principle that he can agree with the idea of thresholds and time-limiting ballots?

Professor Ewing: I do not want to intrude into these very sensitive debates. Whether or not it is moderate or reasonable, I would ask whether it is lawful. That would take me back to the ILO conventions that I referred to earlier—in particular, ILO convention 87—and there to the jurisprudence of the supervisory bodies that emphasise two points.

One is that we should be counting the votes of only those people who vote in strike ballots. If you do not vote, in a sense, you do not count for these purposes. Secondly, when we get to questions of thresholds, the ILO supervisory bodies have said, in a long line and expanding group of cases, that any threshold has to be reasonable. On the question of what is reasonable, what they have said so far is that a threshold of 50% of those eligible to vote is not reasonable. The Bill pitches that at a bit less—at 40%—and the question is, is 40% reasonable?

In determining whether 40% is reasonable or not, I think you have got to take into account the voting methods. The problem with the 40% threshold in the context of the legal framework within which it will be dropped is that it will be dropped into a very rigid system of voting. And if you are going to make an argument for thresholds, I think you have got to be a bit more relaxed about the way in which people go about voting. To have mandatory postal balloting is, I think, probably excessive, too rigid and does not apply elsewhere.

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[The Chair]

Thank you. Before we proceed to hon. Members asking questions, can I just tell you that we have only until five minutes past 3? Our time is very brief, so please be aware of all the time you are using in the replies to the questions put to you. Try to make them succinct, because you are using each other’s time up. I am just giving you a bit of advice. If you could be helpful to both Members and yourselves, that would be much appreciated by Members.

[Stephen Doughty]

Q 357 I have a few short questions that I would like to put to different groups if that is okay. First, to Jon and Janet, given what we have heard about the relatively small incidence of industrial action in the history of the health sector, particularly in relation to your two bodies, fundamentally do you think that this Bill is needed?

Jon Skewes: Not at all. I do not think we have plans to repeat that industrial action over and over again by any means. I think we think it is disproportionate, absolutely; and also it could be quite dangerous in terms of safety in the NHS.

Janet Davies: We do not think it is necessary at all. In fact, we think it will damage relationships, which are very good in the health service. We know that productivity is increased with the facilities time and with having trade union representatives in the workplace. We know it affects patient safety. We think it will be expensive. We think it will introduce extra bureaucracy and could be quite damaging for the good relationships we have got, which could have an effect counter to what is required.

[Stephen Doughty]

Q 358 Janet, we had a Government witness yesterday, from an organisation called 2020 Health who, you may have heard, had a whole half hour to explain that they did not appear to know anything about the Bill. Nor did they know what facilities time was. Unfortunately, you have not got very much time, but could you briefly give us an example of how facilities time benefits employees and patients?

Janet Davies: Yes. We know that facilities time has benefits; we have looked at the evidence and the University of Warwick has done some studies for us and we know that productivity is increased. Certainly, in terms of staff leaving and recruiting, it is much better in a place where there is trade union facilities time, and where there are trade union representatives. Actually, we have worked out that that difference in turnover would save an average teaching hospital £1 million a year. It is a really positive effect that the time gives.

What happens is that our trade union representatives work in partnership with employers, often introducing change, introducing new clinical practice, and investigating things and stopping problems before they start. The proposal could be counterproductive for the good relationships that we have at the moment. Importantly for us as a nursing organisation it could have a detrimental effect on patient care, as it would seriously affect the positive practice environment that we try to create.

[Stephen Doughty]

Q 359 Thank you for that. Matt, we heard some evidence from the London Fire Brigade this morning and you have referred to it. I wondered whether you wanted to respond to any of the comments and whether you could also tell us about the different approaches to industrial relations in the fire sector across the UK. Some quite important contrasts were drawn between what has happened in Wales and what happened in some disputes in London.

Matt Wrack: Yes, I do want to correct the impression that was given this morning. I have known Ron Dobson a long time and was surprised to hear some of the things he said. He mentioned that he was unaware of any arrests. There were two arrests in that dispute. They were not of FBU members. One was of a non-union middle manager and one was of an agency driver—in both cases for driving into members of the Fire Brigades Union. Two of our members were injured, one of whom is sitting in this room, behind us. Ron Dobson was also unaware of the outcome, which is again surprising because his own authority paid compensation to the two FBU members who were injured as a result of those two incidents.

[Stephen Doughty]

Q 360 So you were surprised that he did not appear to be aware of that fact.

Matt Wrack: I am surprised that the senior executive of that organisation did not know that his organisation had paid compensation to two members of mine who had been injured by agents of his during an industrial dispute.

He also used the word “barricades”, which gives the impression of watching “Les Mis”, or something. There were no barricades on London fire stations in 2010. It is utterly misleading to claim that. He also was asked a question, by Jo Stevens, I believe, about the unlawful docking of pay. He said that three cases had been settled. Most people will know that actually in many such cases you run test cases. We ran three test cases of 368 individuals who had had pay stopped. We won those test cases. The London Fire Brigade has decided not to appeal, and the London fire authority has set aside several tens of thousands of pounds to pay compensation for the 368 Fire Brigades Union members who had pay unlawfully stopped. Those are the facts of the situation.

[Stephen Doughty]

Q 361 It is very concerning to hear that, and the commissioner made it clear that he would write to the Committee with some of the information that he did not appear to have at his fingertips. I hope that he will correct some of what he said in the light of what you have said to us just now.

I want to ask about devolution and perhaps this could be touched on broadly across the panel. Clearly, you all operate in public services that are, to a large extent, wholly or partially devolved across the UK. We have just heard from Professor Ewing that the Bill could lead to a fairly serious constitutional crisis in terms of cutting across the devolution settlement. How would you respond to that? Do you think that there are serious risks for relationships across Wales, Scotland and local government across England, of which the Bill shows no awareness, and does not address? I am happy to take a couple of comments, though I am sure we do not have time to hear from everyone.

Mark Serwotka: I share Professor Ewing’s concerns, and I will illustrate that with these examples. We have very good industrial relations currently, for example, in Scotland and Wales with the devolved Administrations, who have sat down and agreed with us the need for positive industrial relations, and made it clear that they do not wish to see the withdrawal of check-off or facility time. What we are in danger of seeing is those bodies that have entered into agreements with their workforce for the smooth running of public services being compelled to act against what they think is in the best interests of themselves as an employer and public service users.

That is particularly concerning because if we look at the civil service when this was done, the last Government effectively compelled all Government Departments to do the same thing, under the guise of this activity being a waste of taxpayers’ money. The Committee needs to know that in the civil service our union offered to pay every penny of every cost that was required to take check-off, so there would be no cost to the taxpayer. Not only was that rejected, but we saw the absurd situation in the Department for Communities and Local Government, where Eric Pickles, as the Secretary of State, withdrew check-off. We took him to the High Court; he lost the case and we won it, on a contractual right to check-off. He cost the taxpayer £100,000 to save £320 a year in the entire Department’s administration.

[Stephen Doughty]

Q 362 Given what you have just said and given the evidence from the Welsh Government and others, do you think that there is a serious risk here that we will end with significant legal disputes about contractual provisions that have already been entered into, particularly with regard to check-off?

Mark Serwotka: Absolutely inevitably and it will be very, very costly, as the example I have just given proves. We can furnish you with the evidence of that case.

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[The Chair]

Len, if you hand it to the Clerk, we will distribute it to all Members in due course.

[Stephen Doughty]

Q 375 Frances, can I turn to you first? Correct me if I am wrong, but I think you said that the TUC represents 6 million workers—one tenth of the UK population. That is a huge number. Given the severe implications of the Bill for a whole range of issues and its potential impact on those individual members and, indeed, the member unions of the TUC, are you satisfied with the level of consultation and how the Government have gone about the consultation in drafting and presenting the Bill?

Frances O'Grady: Absolutely not, nor was the Regulatory Policy Committee. I am afraid that bad laws are made in haste. We were given an eight-week period over the summer holidays for the consultation period, and of course that has left huge holes and uncertainty in the proposals, which I am very happy to list separately. Very big and important questions appear not to have been considered and thrown in belatedly—for example, the proposals on removal of check-off in the public sector. Critically, this has meant that unions, employers and those with practical experience of industrial relations have not had the chance to influence the nature of the Bill in the way we should. I think it contravenes the Government’s own standards in that respect.

I have been pleased to belatedly have contact with Department for Business, Innovation and Skills Ministers and officials, but I wrote to the Prime Minister on 15 May, following the election of the Conservative Government, asking to meet to discuss precisely this issue, and I have not yet received a reply. Frankly, I think my members would see that as discourteous to working people.

[Stephen Doughty]

Q 376 So the Prime Minister is not willing to meet an organisation that represents a tenth of our population—that is quite surprising. Are you also surprised that we are discussing the Bill, in both this format and the line-by-line sessions, without having seen the responses to the consultation process from the Government or much of the secondary legislation that the Bill gives them very wide powers to implement?

Frances O'Grady: Absolutely. Perhaps there will be a question later on this, but it is not just unions that are worried about it; employers are, too, because we believe it poisons industrial relations in this country.

[Stephen Doughty]

Q 377 Thank you. I wonder if I could turn briefly to Dave. I understand Unison has significant concerns about the aspects of the Bill that address facility time, check-off and so on. Could you briefly outline your key headline points of concern?

Dave Prentis: I will try to be as quick as I can. To deal with check-off, these are voluntary arrangements made with employers. No employer is forced into the arrangement. We have 9,334 check-off arrangements with separate employers, 7,242 of which are in the public sector. It is a means by which we organise our partnership work and it is based on three contracts. There is the contract involving the member agreeing the payroll arrangement. It is voluntary, and they are given the option of other means of paying. There is a collective agreement with the trade union, part of which includes training arrangements, facility time and check-off. Obviously, there is also a contract between the union and the member. The systems work incredibly well. From an employer point of view, they know who is in a union.

You can have deductions at source for 14 or 15 different things, including buying a bicycle, paying crèche charges or for season tickets. Why would an employee’s contribution to their trade union be the only thing excluded? Why are the Government pushing auto-enrolment for pensions, which we think is right, while denying trade unions the ability to collect money? It singles out trade unions and will have a major effect on partnership working in health, schools and local government, because the arrangements are part of our participation arrangements.

If we have to spend all our time seeking to transfer people over, that means changing 800,000 people from check-off to direct debit. It will be a massive undertaking, using all the union’s resources. We represent 1 million women members, most of whom are low paid, and we do not see the need to disrupt arrangements that employers have been willing to enter into. It about localism. It is about the employer having the right, at the local level, to decide what agreements they want to reach with their trade union, without having authoritarian legislation preventing them from doing so. There is no logic to singling out the public sector and not the whole economy. It is based on prejudice, and it will badly affect our working relationships with the employers that recognise us.

Connected to this is time off for trade union duties. I will be as brief as I can. Our relationship with employers is based on our local reps having partnership working with them, sitting in the committees that deal with major issues, and representing people in the workplace, which the employers need for their disciplinary or grievance procedures. This is all done by activists under the time-off arrangements. If those arrangements are taken away from our people, it will mean that the joint working that has been fostered in public services since 1948 will become far more aggressive. There will be far more industrial action, and we will have major problems.

We have union learning reps who are involved in getting people to train not just as stewards, but professionally. We do dementia, mental health awareness, lesbian and gay rights and service user training. We provide training for the employers when they sign the agreement. Many thousands of low-paid public service workers benefit from this. They actually get on in life through this and get promotions as a result. All of that will end if these draconian attacks on check-off and facility time take place. They are part of the fabric of the work that we do as a union across all our public services.

[Stephen Doughty]

Q 378 That is very helpful. Turning to another section of the Bill and the provisions that deal with picketing, we have heard the police’s serious concerns, shared by many witnesses, about the workability of a number of the proposals, in particular the proposals in the consultation relating to policing Facebook and Twitter. What has your experience of picketing been? Do you think that these proposals would simply not work?

Sir Paul Kenny: The reality is that the police are looked at in picket line situations almost exclusively as the middle people. They are independent and the co-operation with the police, which is vital for the police to do their job, comes about as a result of being seen in that light. With these proposed regulations, effectively, it is a whole new ballgame.

Please, do not anybody tell me about intimidation on picket lines. I have seen lots of it. I have seen people blacklisted from work for 20 years because they stood on a picket line. I have seen people intimidated about going back to their job by managers, but there is nothing in this Bill is about any of that, is there? I hear—it is illusionary, almost—these stories about intimidation on picket lines. My experience is that the police are effective at dealing with that, and they do it by consent and they do it clearly. It is not what trade unions condone or seek and the police operate very much on a consensus basis.

The side wagons to the main Bill—if you will forgive me for putting it that way—are issues such as the notice-posting and the rest of it. This is just beyond belief. It would be uncontrollable by us anyway—that we would be able to predict what is going to be put on Twitter or Facebook by other people, who may not be particularly connected with the union at all—but we would effectively find ourselves involved. You are criminalising what is effectively a civil right. That is why I described it earlier as just a mess. This is clearly a mess.

[Stephen Doughty]

Q 379 Can I ask a separate question on participation? Perhaps some of the others will want to answer; I know that Len has concerns about that. As union representatives, I am sure that you all want to increase participation in ballots and to see the maximum turnout in those. We have heard a lot about the fact that the Government do not seem to be willing to consider e-balloting, secure workplace balloting and other methods. Could you briefly comment on that, Sir Paul, and then Len? I looked closely at your evidence, Len, and you speak about Central Arbitration Committee ballots, for example, where secure workplace balloting is already used. What are your views on why the Government will not accept methods that would boost the participation that they say they want to see?

Sir Paul Kenny: I will briefly answer, then pass the question to Len. In a sense, this gets to the heart of what this Bill is all about. This is a dishonest approach, because if it was really about getting more people to participate and more people to engage, you would modernise a balloting process that is actually a third of a century old. That is how old it is, but the truth of the matter is that you do not want to. The Government are not seeking to help people to participate or seeking to get conflict resolution. If you think frustrating people through a ballot will mean that the problem will go away, it will not. It will get bigger and then it may erupt in a way that is not controllable by the selected agreements. This is absolutely a dishonest approach.

[Stephen Doughty]

Q 380 So facilitating better participation would benefit industrial relations more.

Sir Paul Kenny: Of course. I forget how many countries use this now, but a whole host of countries do. There was a quote from the Speaker’s Commission saying this was unfair, or unreliable, but I am not sure that that is actually what they did say. I went back and had a look at it and I do not think that is right. Clearly, people are talking about maybe modernising our general election participation by moving to electronic balloting. You clearly want the vast majority of people to participate. That is what you want, and it is why the thresholds issue is not one that I am particularly—I would like to see every person participate, but this Bill does not even attempt to deal with the issue of encouraging people to participate, thereby encouraging dispute resolution. What it seeks to do is to suppress it and therefore foster it.

Len McCluskey: Obviously, Paul has made the point that this is the nub of the Bill. In fact, the Prime Minister himself on 4 October, in an interview with Andrew Marr, made it clear that lots of things in the Bill can be debated and discussed. The inference was that they could be changed and amended, but he said that this was the most important element of the Bill. Everyone in this room will know that I have written to the Prime Minister suggesting that if he is genuine about wanting to increase the turnout, given that he has expressed his concerns about low turnout, which all of us have concerns about, then he should move towards, and get involved in a proper debate about, modern methods of balloting—the same balloting that the Conservative party has just elected their London mayoral candidate with—and most importantly, secure workplace balloting. All of that is feasible. The Electoral Reform Society has said that that is easily achievable with independent assessors.

You asked me, Stephen, why it is not being supported, but you need to ask that question of your colleagues opposite in the Conservative party. When you are considering the whole nature of the situation, you have to ask yourself what is wrong with secure, independent workplace balloting. The point that Paul makes about where this may lead us is something that members of this Committee, and indeed the Government in general, will need to consider seriously. We may well find that our members—ordinary, individual, decent trade unionists, who contribute massively to the wealth of our nation—are pushed outside the law. What this Bill will do, if it is not changed, is to require general secretaries such as myself to repudiate, or distance themselves from, those workers. Unite will not do that. We will not repudiate and we will not distance ourselves from people who are engaged in legitimate action.

I have said to the Prime Minister, extending the hand of pragmatism, “Please sit down with us. There is no reason why you cannot concede the principle of independent, secure workplace balloting. If you did so, the issue of thresholds would become an irrelevance. Workplace balloting would consistently produce high turnouts.” I am puzzled as to why there has not been a positive response to that offer. I am confused about why that was not snatched at immediately, unless the Prime Minister is being disingenuous. With the greatest respect, I have to say that it did not fill me with confidence when he said yesterday in Prime Minister’s questions:

“I notice that Len McCluskey now supports our position.”—[Official Report, 14 October 2015; Vol. 600, c. 314.]

That is wrong and disingenuous, and he knows that. My appeal to him, to the Government and to the Conservative members of the Committee, is: please, stop playing games and tell us why you believe secure workplace balloting is not acceptable. Nobody is giving a reason. If that was grasped in the manner in which it has been offered, a huge element of the controversy surrounding the Bill would be removed.

Frances O'Grady: Chair, I wonder if I can add very briefly to that. I know that this issue of safety and security has been raised a number of times, including by the Minister in a meeting I held with him—although I think, Nick, you actually quoted the lack of security of a postal ballot in a local authority election, perhaps in error.

The real issue here is: is electronic balloting any less safe than postal balloting? The Electoral Reform Society report confirms that it is no less safe, given the risk run in postal balloting. Of course, a number of employers, such as the Royal Bank of Scotland, use electronic balloting already to elect worker representatives to their consultative committee. We see it used across a whole range of organisations, including political ones. Frankly, if it was not safe, that selection ballot for the Conservative Mayor of London candidate should be rerun as a postal ballot.

[The Chair]

May I just say that we have got a very short period of time left? The purpose of the session is to get in touch with you. You got in touch with us and said that you wanted to say things, and we said that we would like to ask questions of you. I have got about seven or eight Members of Parliament, on both sides, who want to do so. If you can be more succinct—that goes for Members too—we will try to get as many answers out as possible, and that may help both sides.

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[The Chair]

We are moving into an area that we should be wrapping up. We should finish in about one minute, but I have leeway of up to five minutes. I will call Julie Elliott as the final speaker, but before I do, we may have a brief response from Stephen Doughty.

[Stephen Doughty]

Q 400 Frances, you talked about the international context. We heard factual comparisons from Amnesty and Liberty. Obviously, it was David Davis who compared parts of the Bill to Franco’s Spain. If the Bill was enacted as it stands, how would we compare internationally? Which countries would we find ourselves alongside?

Frances O'Grady: I always avoid naming particular countries because I am hopeful of persuading the Government that we should not be in that league. We already have what is widely recognised as one of the most restrictive legal frameworks on unions in developed western industrial democracies.

[Stephen Doughty]

Q 401 But it would put us somewhere near the bottom.

Frances O'Grady: This would take us further down that very unsavoury league.

[The Chair]

I am sure that you can write to us on that subject, Ms O’Grady. It would be helpful.

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[The Chair]

Thanks very much. It is true that when every Member of Parliament is elected, then takes the oath and signs the book, they become seasoned politicians. I ask Members on both sides of the Committee to direct their questions to the appropriate Minister, rather than the collective, otherwise we will get very few answers done.

[Stephen Doughty]

Q 403 We have heard some pretty interesting evidence during the course of these two sittings, and of course, on Second Reading and outside this House as well. We are in a situation where many Government witnesses could not appear to find reasons for the Bill, did not appear to have read or to understand parts of it, and certainly could not justify it. There have been passenger bodies who were not willing to comment on it; the police, who think parts of it are unworkable; the unions, who obviously do not want it; civil liberties organisations, who do not want it; legal experts, who do not want it and think it violates various conventions; and devolved Governments, who do not think they are going to give their legislative consent for significant parts of the Bill to go forward. So where was this dreamt up? Was it done by Minister Hancock? Was it in Minister Boles’s bedroom? Or was it the Chancellor? We seem to have a Bill without a purpose and without a need that appears to be largely unworkable. How was this dreamt up?

Nick Boles: Well, Mr Doughty, I am sure you remember—you were paying as close attention as I was—the evidence that was given by the Confederation of British Industry. The director general or secretary general—whatever he is called—John Cridland made it clear that it was a policy that the CBI had adopted five years ago and had been campaigning on for five years. We in the Conservative party think that the business community is important and should be listened to. You will also be aware that in the last five years, in which we were in government in coalition, there were a number of strikes—I must always emphasise that these are the great exception to strikes in general—that caused huge disruption to members of the public who have no alternative means of securing the service that the organisations offer.

[Stephen Doughty]

I—

Nick Boles: I am just going to finish, Mr Doughty. Those strikes cause great disruption to members of the public, and they did take place either on very old ballots, or on very old ballots that were also secured by a very low turnout. Therefore, we have put together these proposals, which we think the public support.

[Stephen Doughty]

Q 404 We have heard the myth of mass industrial action that the Government are presenting, when the facts simply do not bear that out. It is important that we use the latest evidence—

Nick Boles: Did you hear me say “mass industrial action”? I do not think I said that. I said it was very much a minority of industrial action.

[Stephen Doughty]

Q 405 Yes, but that is not the impression created by Ministers. In the media, we had Minister Hancock going out over the summer talking about—[Interruption.] I have here what Minister Hancock said over the summer. He was talking about having “hit squads” to deal with strikes. He said:

“We are ready to use the Cobra system if there are strikes. We are ready to respond”—

to a wave of industrial action. Talk about 1980s rhetoric—that is exactly what we are getting from Minister Hancock. Let me return to the facts. The Ministers should be familiar—

Matthew Hancock: Hold on.

[Stephen Doughty]

Q 406 Did you say those things, Minister?

Matthew Hancock: You are confusing the difference between headlines and what I said in that case.

[Stephen Doughty]

I have your exact quotes here, Minister.

Matthew Hancock: Hold on, because you have just accepted that you had moved away from the facts and are now having to return to them, and I look forward to that. There is one further thing that motivates some of the changes in this Bill, and I know it is not something that the Labour party cares much about.

[Stephen Doughty]

Q 407 Minister, did you say the things that were reported in the summer?

[The Chair]

Order.

Matthew Hancock: In the last Parliament, in the civil service, which is about a tenth of the public sector by headcount, the changes proposed in this Bill, which would be enabled as reserve powers in this Bill, saved over £50 million. I know that saving and looking after taxpayers’ money is something that different MPs care about more or less, but I think it is important—and I know it is important to the general public—that we run public services as effectively and efficiently as possible. Saving taxpayers’ money is important, and at the moment we do not know how much taxpayers’ money is spent.

[Stephen Doughty]

Q 408 Minister, we will come to the potential costs of the Bill in due course. Given that you are speaking about the public sector and that you wanted to return to facts, could you tell me how many working days were lost due to industrial action in the past six months, based on the latest figures from the Office for National Statistics? What proportion is that of the overall number of working days in the public sector?

Nick Boles: Sir Alan, you may remember, though of course you have not been chairing all the sessions, and other Committee members will certainly remember that, on the first day of evidence, we had a lively debate about the difference between direct impacts of days lost—we have always accepted and been very clear that the number of days lost is low, historically; that is very welcome—and the indirect impacts on people who have to completely reorganise their lives because the bus they use to get to work is not running or the school to which their children normally go of a morning is closed.

That is what we are focusing on, and we have been explicit: this is not trying to dramatically reduce the number of days lost to strikes. We have never said it is. We have acknowledged that the number of those days is low. We have said that we are trying to reduce the impact of strikes with low support on members of the public. Their days lost and their disruption is not measured by the ONS. I would love it to be measured by the ONS, though I suspect it might be quite challenging to capture those data. It is a real thing. You just have to ask the public what they think of our proposals, and they clearly support them.

[Stephen Doughty]

Q 409 So we are making a Bill based on evidence that the Minister admits does not exist. The British Chambers of Commerce and the Confederation of British Industry could not provide that evidence either. I have the facts: for the public administration, defence and social security sector, 145,400 working days were lost to strikes in the six months before August 2015, according to the latest ONS statistics. The total number of working days in a year is 393,580,000. The days lost to strikes are less than 1%; it is a tiny proportion.

Nick Boles: It will not come as a surprise to any member of the Committee that the Labour party is not interested in what the public think about the situations with which they are faced. This idea that everything important in life is captured in an ONS statistic is, frankly, perhaps what has led the Labour party to its current position. We take the view that when the public say they do not like being disrupted, they do not like having to miss work and they do not like having to look after their children mid-week because a strike that took place on 37% turnout closes the school their child goes to, we should pay attention. These proposals have been supported by a great majority of the public when tested in opinion polls, and we are doing the public’s bidding on this.

[Stephen Doughty]

Q 410 With respect, Minister, nobody likes being disrupted. We have heard repeatedly from witnesses that industrial action is always a last resort. We have also heard extensively about how unions put in extensive measures, particularly when there are health and safety issues and life and limb are at risk, to deal with that and ensure the public are not adversely affected. Whether you look at the TfL figures for the underground or the health and safety figures that Frances O’Grady mentioned, we know that the days lost or disrupted for citizens and customers in this country are vastly outnumbered by those lost due to causes other than industrial action. This is a huge sledgehammer to crack a relatively small nut.

I want to ask a few specific legal questions of Mr Boles and of Mr Hancock, given the impact on the areas he covers. We have heard clearly about the Bill’s potential conflict with the devolution settlement. We heard very clear evidence from both the Welsh and Scottish Governments that they would consider withholding legislative consent and that they believe this could lead to significant challenges. We have also heard about potential breaches of international conventions, let alone breaching principles of natural justice.

We talked about costs to the taxpayer. Given the cost to the taxpayer of, for example, the Supreme Court case that the Welsh Government were involved in with the UK Government over the Agricultural Wages Board, what estimate have the Law Officers made of the potential legal cost to the Government as a result of this legislation being challenged in its current form?

Nick Boles: I am glad to say the Law Officers have advised us that all the proposals in the Bill are entirely compatible with both devolution law and the European convention, so we are not anticipating legal costs to fight. If, of course, trade unions or others want to challenge, we will defend robustly our proposals, but we are absolutely satisfied that they abide by all the conventions that apply.

[Stephen Doughty]

Q 411 Do you plan to go back to them, given some of the evidence that has been presented and the very public positions of the Scottish and Welsh Governments?

Nick Boles: No, because, as I think you will remember, the representatives of the two Governments did accept, although grudgingly, that employment is currently a matter that is reserved to the UK Parliament, so it is entirely proper for us to make changes to employment rules and apply them across the United Kingdom. They might prefer it was otherwise, but they accepted that that is the current legal position.

[The Chair]

Ms O’Grady spoke on this matter and promised to provide written evidence to all Committee members, so I suspect it will come up again when line-by-line scrutiny gets under way.

[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.

[The Chair]

I think we have tested this enough. We will move on, because we have very little time remaining and there are Members on both sides who want to ask questions. These issues will be tested in Committee when we reach that part of the Bill and more evidence is presented.

--- Later in debate ---

[The Chair]

Stephen Doughty, very briefly.

[Stephen Doughty]

Q 435 Given what the Minister said, it would be very helpful for the Committee—perhaps you can arrange this, Sir Alan—to have a full compendium of the ONS labour market statistics, including all of the forms of industrial action and how those compare with days lost for other reasons. I think that the Minister is selectively quoting.

[The Chair]

Members, that is the end of today’s session. We are very grateful to everyone who participated and the final Ministers in particular.

Ordered, That further consideration be now adjourned.—(Stephen Barclay.)