National Living Wage

Stephen Doughty Excerpts

Monday 18th April 2016 Commons Chamber

[Joan Ryan (Enfield North) (Lab)]

I beg to move,

That this House agrees with the Chancellor of the Exchequer that Britain deserves a pay rise and commends his introduction of the national living wage; notes, however, that some employers are cutting overall remuneration packages to offset the cost of its introduction, leaving thousands of low-paid employees significantly worse off; and calls, therefore, on the Government to guarantee that no worker will be worse off as a result of the introduction of the national living wage.

My hon. Friend the Member for Mitcham and Morden (Siobhain McDonagh) has been campaigning tirelessly on the implementation of the national living wage, and has been fighting for all workers to truly benefit from the new proposals. Unfortunately, as Mr Speaker said, she is in hospital and cannot be with us today. I am sure that Members from across the House will join me in wishing her a speedy recovery. [Hon. Members: “Hear, hear.”] I have spoken to her today, and she is on the road to recovery. I understand that she will be listening and possibly watching our proceedings.

I had intended to speak in support of my great friend and colleague’s work, but I am proud to be a signatory to the motion, and I am honoured to have been asked to present her speech and lead this important debate on her behalf. She is delighted that the debate can go ahead without her. She thanks the Backbench Business Committee for granting time for the debate, and the Speaker’s Office and the Table Office for allowing me to lead the debate on her behalf.

When my hon. Friend made her application to the Backbench Business Committee, she had no idea just how huge the issue would be. It all started a few months ago, when a friend of hers approached her with his payslip from B&Q. He said, “Siobhain, B&Q has given me new terms and conditions, which it says I have to sign or I’ll lose my job. It is cutting back my Sunday and bank holiday pay, as well as my summer and winter bonuses. I think I might have my pay reduced.” How right he was. Indeed, my hon. Friend was shocked when she calculated that he would lose up to £50 a week, or about £2,600 a year. The saddest thing was that this was happening after his basic pay had been increased by the introduction of the national living wage. To be clear, this was a pay cut after the Chancellor guaranteed that Britain was getting a pay rise.

After raising the matter at Prime Minister’s questions—frankly, the Prime Minister did not have much of an answer for her—my hon. Friend started receiving dozens of emails from B&Q employees from around the country. From Exeter to Aberdeen, she was contacted by staff at all levels and from all walks of life who would also lose out.

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

I pass on my best wishes to my hon. Friend the Member for Mitcham and Morden (Siobhain McDonagh), who has done tireless work on this issue. Does my right hon. Friend share my concern about the fact that, as I have heard myself, because of the differential whereby under-25s are not eligible for the living wage, others are losing out on overtime and other hours, which are given to younger workers who can be paid less? Not only are younger workers losing out because they are paid less, but other people are not getting the overtime or extra hours that they might have thought they would.

[Joan Ryan]

My hon. Friend makes a valid point. This is a double whammy for some workers; not only are they losing out because their employers are altering their terms and conditions, but they are losing these valuable other hours. Many of these workers absolutely depend on being able to work extra hours and overtime.

B&Q, like so many companies nationwide, has made all employees sign new terms and conditions under a variation of contract. Those new terms scrapped double time for Sundays and bank holidays, as well as seasonal bonuses and other allowances that staff relied on to top up their income. These pay cuts were much greater than the gains of the national living wage, which is why so many employees are losing out.

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[Judith Cummins (Bradford South) (Lab)]

Thank you, Mr Deputy Speaker, for calling me to speak in this important debate. In opening, may I place on the record my sincere thanks to my hon. Friend the Member for Mitcham and Morden (Siobhain McDonagh) for her efforts in securing this Back-Bench business debate? She is a fearless campaigner and a credit to this place. I wish her a speedy recovery, which I know she will achieve through sheer force of willpower. I also thank my right hon. Friend the Member for Enfield North (Joan Ryan) for stepping in.

When I sat in this Chamber alongside many other hon. Members not so many months ago and heard the Chancellor say that he was going to increase the pay of the lowest paid, I was speechless. The glib tagline was, “A pay rise for Britain”. Throughout my political life, I have fought for improved pay and conditions for the working people of this country, especially the lowest paid. One of the proudest moments in my political life was seeing a Labour Government, in this very place, introduce the national minimum wage as one of their first acts—a move that was strongly opposed by the Conservatives.

Despite my understandable cynicism, I was delighted that the Chancellor had undergone his own damascene conversion and had finally seen the light by belatedly understanding that every worker in this great and prosperous country, not just those at the top of the ladder, deserved to be paid fairly. But—and there is always a “but” with this Government—my initial delight soon dissolved as I rapidly discovered that my cynicism was not misplaced but very much spot on. As the now former Secretary of State for Work and Pensions, the right hon. Member for Chingford and Woodford Green (Mr Duncan Smith), recognised, the Chancellor’s glib tagline about giving Britain a pay rise was devoid of substance and nothing more than hot air and bluff. His Budget announcement was the stuff of fairy tales. When we scratch beneath the thin veneer of the so-called national living wage, it swiftly becomes clear that the low-paid workers of this country are being hammered, just as they always are by this Tory Government.

Despite the Chancellor’s embarrassing U-turn on tax credits, he has ploughed ahead with cuts to the successor scheme, universal credit. Cuts introduced this very month mean that tens of thousands of low-paid working families who are in receipt of universal credit are expected to lose up to £200 a month from their pay packets. That is the first attack by this Tory Government. The second attack, and the topic of today’s debate, is the Chancellor’s spectacular failure to ensure that big business funds his so-called national living wage off its own back and through its profits, rather than off the backs of workers.

My hon. Friend the Member for Mitcham and Morden, the Union of Shop, Distributive and Allied Workers and the Daily Mirror newspaper, through its coverage in recent weeks, have shown that, when given the choice, big business has seized on the cheapest method to fund a pay rise for its workers by heartlessly cutting their overall pay and benefits package. That is simply shameful.

[Stephen Doughty]

My hon. Friend is making a very strong speech. Many businesses, particularly in the care sector, have got away with not paying the minimum wage and used all sorts of tactics such as clipping and not paying for travel time. An even greater number of them now use tactics such as cutting tea breaks and lunch breaks, in order to get away with it on an even greater scale. The Government failed to enforce the original minimum wage, and the situation is now being compounded further.

[Judith Cummins]

I thank my hon. Friend for giving that very good example. My right hon. Friend the Member for Enfield North mentioned the glaring example of B&Q, which has asked its workers to sign a contract that reduces a number of their benefits. It is believed that the overall result will be that many will lose thousands of pounds. The company’s response has been to introduce a temporary scheme, for just two years, to protect the value of its workers’ overall packages. That is simply not good enough, particularly as it has been reported that the parent company of B&Q, Kingfisher, may pay its chief executive officer a total package of up to £3.6 million. The numbers are jaw-dropping, as is the hypocrisy. Once again, this Tory Government are presiding over the shameful exploitation of those who are least able to make ends meet, least able to make their voices heard and least able to stand up and tell the Government that what they are doing is simply unfair and unacceptable, and that it cannot go on.

The Chancellor cannot even plead ignorance and suggest that this shameful episode is an unexpected by-product of his noble and good deeds. A ministerial answer to a written question by my hon. Friend the Member for Ashfield (Gloria De Piero) on 21 March revealed that the Government were aware of the possibility that big business would choose to fund their so-called national living wage through cuts to wider remuneration packages. The Government’s view was:

“It is for individual businesses to decide exactly how to respond to the introduction of the National Living Wage, appropriate to their circumstances. But any changes to contractual pay should be discussed and agreed with workers in advance.”

The Government simply do not get it. If the choice for workers is between unemployment and agreeing to changes designed to reduce their overall contractual benefits, most, if not all, workers—especially the lowest paid in society—will sign up.

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[Julie Cooper (Burnley) (Lab)]

I pay tribute to my hon. Friend the Member for Mitcham and Morden (Siobhain McDonagh) for securing a debate on this important topic, and I wish her a speedy recovery. I also congratulate my right hon. Friend the Member for Enfield North (Joan Ryan) on the way in which she has led the debate.

Like so many Members in the House, I welcomed the news in last year’s Budget that the Government would introduce a new national living wage, as a result of which workers aged 25 and over would receive £7.20 an hour in April—an increase of 50p from October 2015, when the minimum wage was set at £6.70. I also welcomed the plans for it to rise to £9 per hour by 2020. Both those measures are important steps towards securing a real living wage, which the Labour party continues to campaign for. After years of workers enduring the bulk of the Government’s austerity agenda, a pay increase for 1.8 million workers is welcomed, even though it does not go far enough.

For me, this is a local issue, that affects the lives of many of my constituents. According to the House of Commons Library, 19% of people in my constituency will benefit from the living wage this year. That figure will rise to 27% by 2020. I understand that the changes will have a disproportionate impact on small businesses, which employ 35% of the adult workforce and 52% of Britain’s minimum wage workers, and that it will be concentrated in the hospitality and retail sectors, which account for more than 46% of minimum wage jobs. I also note the concerns coming particularly from the social care sector, which is already underfunded. The Government urgently need to do more to address the shortfall in funding.

In the recent weeks leading up to the implementation of this new wage, a campaign of fear has been put out by large employers that simply do not want to pay their employees a fair wage. Some have claimed that a living wage will lead to job losses. Others have had the gall to say that raising wages is in effect a tax targeted at businesses using low-skilled workers. The truth is that the taxpayer has had to pay to top up the pay of workers to the tune of £11 billion a year. Prior to this wage rise, the four big supermarkets alone—Tesco, Asda, Sainsbury’s and Morrisons—cost £1 billion a year in the tax credits and extra benefit payments their underpaid staff received.

I have found disturbing and, quite frankly, shameful the way in which some large employers in the service sector have used the introduction of a living wage as an excuse to cut basic work entitlements. In the face of the changes, some employers have cut holiday pay, lunch hour pay and sick pay, and have cut contracted hours. As has already been mentioned, the retailers B&Q, Tesco and Wilko have all cut premium holiday pay and other benefits while reluctantly raising pay. Staff at Tesco face a cut to night-time and holiday bonuses, as do staff at Wilko and Morrisons. One Tesco worker has said that the loss of pay will amount to £75 a month, which could be the difference between making next month’s rent and being kicked out on to the streets.

[Stephen Doughty]

My hon. Friend is outlining what I regard as very underhand practices that are hurting such workers. Will she join me in paying tribute to the work of trade unions such as the GMB, USDAW, Unison and Unite, which have played a key role in exposing a lot of these problems during the past few months? That underlines why trade unions are so crucial in standing up for workers in workplaces, such as the care sector or the retail sector that she mentions.

[Julie Cooper]

I am very happy to agree with my hon. Friend and pay tribute to the trade union movement, which has done so much to stand up for the rights of workers when faced with such threats from some big companies.

Eat, the café chain, has reportedly stopped paying staff during lunch breaks. Caffè Nero has told staff that it cannot afford to pay the national living wage and allow their workers a free panini at lunch time, despite the fact that its profits grew by 8.5% to £241 million in the 12 months to last May and that the company has not paid corporation tax since 2007. As was mentioned earlier, B&Q has demanded that employees sign away rights to a range of in-work benefits worth more than a £1,000 a year or face the prospect of being sacked. This intimidating and bullying of staff should not be tolerated in any workplace.

The Low Pay Commission has warned that some employers may decide to label employees as apprentices or self-employed to avoid having to pay them the living wage. Other suggestions floated by large retailers include cutting the number of staff or speeding up the implementation of technology to replace staff, such as using more self-checkout tills in supermarkets. These regressive actions are in complete contradiction to the aims of the living wage, as the Government pointed out when they introduced it. They said it would prompt employers to invest in training and technology to make their workers more productive and break the low-pay, low-productivity cycle. I do not see how cutting in-work benefits will make employees more productive, or break the cycle of low pay and insecure work.

Costa Coffee, Next and other high-profile companies have said that they will increase prices to cover the change in wages by passing the price directly on to the consumer. I was astonished to hear a member of staff in a small chain in my Burnley constituency tell a customer that the price of bread had gone up because of the change to wages. These companies can afford to pay and should pay a living wage off the back of the profits that they produce. This should not be a system in which employers can choose between holiday pay and a living wage, or between raising prices and sacking staff.

Those guilty of such actions show their contempt for their customers, for this Parliament and the law and, most importantly, for their staff—the very individuals who give their sweat and blood, and their time and effort, so that those at the top can receive large salaries deducted from record profits. If such large companies employing thousands of people across the UK can afford to pay their lawyers and accountants large fees to cut their tax bill and avoid paying corporation tax, I do not see how they cannot afford to pay their employees a real wage that they and their family can live off.

The Government estimate that the total cost to employers of implementing the national living wage in 2016-17 is £1.1 billion. Yet last year, according to Her Majesty’s Revenue and Customs, tax fraud cost £16 billion, with tax evasion alone meaning that the Government collected £4.4 billion less in tax. The money lost to the economy could easily cover the cost of the implementation of a real living wage.

Some claim that a living wage will lead to job losses. In the face of much of the scaremongering about job losses, it is worth pointing out that there has been little to no negative impact on our economy or jobs since the introduction of a minimum wage in 1999, despite the fact that the same people made the same arguments then. I am happy to say that some employers have welcomed the wage rise. Some have gone further by paying all their staff, irrespective of age, a higher wage than the Government’s living wage.

This debate is not simply about the cost of a living wage; ultimately, it is a wider reflection of an increasingly divided society. I am running out of time, but I would like to share with hon. Members my own experiences. For 24 years, I owned and ran a successful small business in which I employed 10 people. Through all that time, I recognised that the staff were a real asset, helping to build the success of the business. They worked hard and contributed much, and they were valued highly. I was proud to pay them a real living wage, and they certainly deserved no less. Similarly, when I was leader of Burnley Borough Council, I was pleased to introduce the real living wage for all employees. Not only is this the fair and decent thing to do, but it makes sound economic sense, because when people have more money in their pocket, they create demand for more and better services and shops. Thus the living wage, far from damaging business, actually acts as a boost.

I call on the Government to protect workers’ rights that are clearly being undermined. It should be made clear, through legislation if necessary, that employers should not see the living wage as an opportunity to cut back on holiday pay or other hard fought for entitlements—

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[Kevin Brennan]

I will come to my concerns about the way in which this policy is being introduced in due course. There is plenty of evidence from the introduction of the national minimum wage that if it is done correctly, increasing pay for the lowest paid workers can result in an increase in aggregate demand, and in greater productivity and prosperity for the economy.

We have heard contributions from my hon. Friends the Members for Bradford South (Judith Cummins), for Rochdale (Simon Danczuk), and for Burnley (Julie Cooper). We have also heard from the hon. Member for Lanark and Hamilton East (Angela Crawley), my hon. Friend the Member for Ellesmere Port and Neston (Justin Madders) and my hon. Friend the Member for Halifax (Holly Lynch), whose reference to Adele and the importance of paying younger people sounded convincing to someone like me.

We also heard from the hon. Member for Inverness, Nairn, Badenoch and Strathspey (Drew Hendry), who talked about his experience as a council leader. We heard from my hon. Friend the Member for Worsley and Eccles South (Barbara Keeley), and from the hon. Member for Glasgow Central (Alison Thewliss). My neighbour, my hon. Friend the Member for Cardiff Central (Jo Stevens), made a pertinent point about seafarers. It is important to remember that seafarers are exempt from this legislation, and we need to bring in new protections for them. My hon. Friend the Member for Heywood and Middleton (Liz McInnes) told us about her partner spending a lot of time at B&Q. If her household is anything like mine, that is no doubt a result of his being told that he has to go to B&Q and do certain DIY jobs. This happened to me so much in years gone by that we used to call it “Be in the Queue” because I was down there so much. We also heard from the Scottish National party Front-Bench spokesperson, the hon. Member for Banff and Buchan (Dr Whiteford).

Today’s debate has been rather peculiar. On this side of the House, there has been general support for the idea of the so-called national living wage that the Chancellor announced in his Budget, but there has also been criticism of its implementation and its potential to make some people worse off. That is the purpose of today’s debate. However, the only contribution from a Back-Bench Conservative Member seemed to be against the Government’s policy altogether, so it has been a peculiar debate in that respect.

As has been highlighted, the national minimum wage was introduced by the Labour Government in 1998. It was opposed tooth and nail by the Conservatives, but the Minister for Skills has previously and rather generously acknowledged that they were wrong to do so, just as they were wrong to oppose other progressive achievements of Labour Governments, such as the NHS. He has acknowledged that fact on the record in my presence in this House, and I am grateful for his generosity in doing so.

I referred to the “so-called national living wage” because, as has been pointed out many times today, it really is not a new concept. It is a symptom of the Chancellor’s inability to do anything that might be worth while without trying to extract the maximum political advantage from it. This was highlighted when the former Work and Pensions Secretary resigned, saying that the Chancellor was always seeking to do something that was

“distinctly political rather than in the national economic interest”.

The Chancellor could have said, “I want to increase the national minimum wage for the over-25s”, which is in effect what this policy does. Instead, he chose to pinch the name “living wage” from those who have worked on devising and calculating it, who have brought together the evidence based on need to formulate the concept of a living wage, and who have campaigned for it right across the country with great success. He nicked that name for his policy, which, it has been pointed out, will not introduce a true living wage based on the concept of the evidence of need as developed by the Living Wage Foundation.

Similarly, the Chancellor could have done the thorough preparation that a policy such as this requires. He could have put the policy through a proper stress test, as was done by Ian McCartney and others when the national minimum wage was first introduced. However, that would have spoilt his piece of political theatre in the Budget, and the Great Osborno would not have been able to pull a rabbit out of his hat to the delight of all his misdirected audience on the Conservative Benches. The problem of some workers potentially being worse off could have been avoided if we had a Chancellor who was more interested in the substance of making policy work than in the smoke and mirrors of political presentation.

It is illegal for employers to pay less than the national minimum wage, yet figures provided by the Department for Business, Innovation and Skills show that the numbers of employers being fined for doing so have actually increased in recent years. We would like to know what measures will be put in place to ensure that we do not have a repeat of this deliberate lawbreaking and undermining when the so-called national living wage is more established. Will these companies be named and shamed? Will there be financial penalties?

[Stephen Doughty]

Is my hon. Friend aware of the case of MiHomecare, a subsidiary of Mitie in the care sector? It has had to make a significant number of payments to workers in Wales and has been involved in out-of-court settlements for non-payment of the minimum wage, yet it was the Conservatives who gave Mitie’s chief executive, now Baroness McGregor-Smith, a peerage.

[Kevin Brennan]

I am aware of that case. My hon. Friend, who is my other parliamentary neighbour, accurately reflects the problems in the care sector that came up in the debate, and describes the connections to some of the companies that need to be looked into more carefully.

The action being taken by some employers may not be illegal, but it undermines the spirit of the law, which is to provide an increase in wages and living standards for British workers. Some of those taking this curmudgeonly path are in the sectors that might benefit most from workers having extra purchasing power in their pocket, such as tourism, retail and hospitality. As we have heard, the Low Pay Commission warned that some employers could label employees as apprentices to avoid having to pay the so-called national living wage.

We have heard examples involving various supermarket chains, retailers, restaurants and so on. In the interests of time, I will not name them or repeat what was said in the debate, but in a week when we have seen one loss-making chief executive officer try to secure a pay package of £14 million a year, it is obscene that an ultimate pay rate of £9 by 2020 is being undermined by the heads of some of these big businesses. Corporation tax has been reduced in recognition of the introduction of the so-called national living wage, leading to savings for businesses. Was that intended to compensate businesses for the phased introduction of the so-called national living wage? If so, does the Minister condemn the businesses using some of these practices?

Private sector businesses may have other opportunities to recoup increased costs by raising prices for goods and services, or by altering how labour, capital and profits are apportioned and rewarded. However, those options are not available to local government, as was pointed out, and the gap there is huge. Will the Minister agree to review the local government cuts in view of the impact of the national living wage?

Many hon. Members referred to young people, who have been deliberately excluded from the so-called national living wage. The Guardian recently highlighted the case of a worker at a well-known DIY store—I will put it no more strongly than that—who was on £7.20 before the introduction of the so-called national living wage and £6.70 after its introduction. He said:

“I’m getting less for doing the same job… I feel so worthless.”

What is the Minister’s reaction to that? What assessment has he made of the impact of the so-called national living wage on workers under 25? As was asked in the debate, what is the purpose of widening the differential between the under-25s and those who are older? Is it to increase demand for the under-25s, or does it reflect that the Minister somehow believes that the under-25s are worth less in productivity terms than those over 25?

The so-called national living wage could be celebrated on all sides of the House if it was introduced properly and if the letter and spirit of the law were upheld. If not, many workers could, as we have heard, be considerably worse off. The Opposition will be watching closely to ensure that that does not occur. The Government, with all their resources and power, should be introducing the change with real vigour. Will the Minister act to ensure that, as the motion demands, no workers are worse off as a result of Government policy? I invite him to tell the House how he will do that.

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[Nick Boles]

I will not give way again.

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

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

[Stephen Doughty]

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

[Nick Boles]

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

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

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

Oral Answers to Questions

Stephen Doughty Excerpts

Tuesday 2nd February 2016 Commons Chamber

[Angela Smith (Penistone and Stocksbridge) (Lab)]

4. What recent steps he has taken to support the steel industry.

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

8. What recent steps he has taken to support the steel industry.

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[Sajid Javid]

The hon. Lady may be interested to know that it was the Secretary of State who asked for an emergency meeting of the European Council to discuss this issue of unfair trade for the first time and to make sure that when the EU takes action, it does so appropriately and in a speedy fashion. The EU is considering the issue of market economy status. When it puts forward a proposal, we will take a careful look at it. Even if a country does have market economy status, that does not stop the EU taking action, as is shown by the examples of Russia and the US.

[Stephen Doughty]

As you are aware, Mr Speaker, I have concerns about a written answer that I received last week from the Ministry of Defence. It stated that

“the Ministry of Defence (MOD) does not hold a complete, centralised record of steel procurement for projects and equipment, either in terms of quantity or country of origin, over the past six years.”

Why on earth should we believe the Government’s promises on procurement when they do not even keep records in the Ministry of Defence, and what will the Secretary of State do about it?

[Sajid Javid]

We are the first country in the EU to take advantage of new procurement rules. When it comes to defence needs and other infrastructure projects, we should use British steel whenever we can. For example, the Queen Elizabeth-class aircraft carriers are 94% British steel—that is 77,000 tonnes. Last week I visited Crossrail, the biggest infrastructure project in Europe, and almost all of it is British steel.

Oral Answers to Questions

Stephen Doughty Excerpts

Tuesday 15th December 2015 Commons Chamber

[Sajid Javid]

Like my hon. Friend, the Government believe passionately in free enterprise. Free enterprise has motored this economy for decades, and it will continue to lift people out of poverty. We do have a strategy—it is called the long-term economic plan.

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

I am sure that the space Minister will praise the foresight of the previous Labour Government who established the UK Space Agency. Given that Tim Peake’s incredible mission is launching today, will she say a little more about how she will spread inspiration from that mission to a budding generation of new space scientists, engineers and astronauts, including in Cardiff South and Penarth?

[Anna Soubry]

Tim Peake is going to the International Space Station, but I mentioned seven years because—as you know, Mr Speaker—I am not prone to partisanship, and I will always give credit where it is due. I wish that Labour Members would do the same.

We have made huge progress to help great industries such as the steel industry, including our announcement on energy intensive industries, but I notice—let me get this point in when I have the opportunity, Mr Speaker—that nobody has mentioned that or said how good it is. The hon. Gentleman and the hon. Member for Wallasey (Ms Eagle) are right to say how important it is that we inspire the younger generation—boys and girls—about great future career opportunities, especially in engineering.

National Minimum Wage: Sports Direct

Stephen Doughty Excerpts

Monday 14th December 2015 Commons Chamber

[Nick Boles]

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

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

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

[Nick Boles]

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

Trade Union Bill

Stephen Doughty Excerpts

Tuesday 10th November 2015 Commons Chamber

[Kevin Brennan]

My hon. Friend is right, and for some reason, that does not seem to matter to Ministers—

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

rose—

[Kevin Brennan]

I had not quite finished the sentence, but I will give way to my parliamentary neighbour.

[Stephen Doughty]

I thank my hon. Friend who is doing an excellent job as shadow Minister. He will know that I am transmogrified in my position, but it is a delight to be here speaking on this Bill again. Is not the greatest irony the fact that one of the architects of this Bill, the Minister for the Cabinet Office and Paymaster General, stands up at the Dispatch Box at Cabinet Office questions extolling the virtues of the Government Digital Service and the digitalisation of online services in lots of highly secure and complex matters? That same Minister is one of the architects of this Bill, which does not allow e-balloting.

[Kevin Brennan]

One is not allowed to use the word “hypocrisy” in this House, so “irony” was the correct word for my hon. Friend to use.

As I was saying, none of this seems to matter to Ministers. Our new clauses also require unions to use postal ballots alongside electronic and workplace voting, where necessary, to ensure that everyone has a chance to vote and that members who may be absent from work due to sick leave or maternity, paternity or adoption leave will be able to vote. None of that matters to Ministers either. Our new clause allows unions to provide members with a choice of voting methods, including postal and electronic voting, and employers would be under a duty to ensure that union members can vote free from interference or constraints. The use of faster and more efficient balloting methods could also assist in the earlier resolution of disputes as ballots and subsequent negotiations would take place more quickly. But you’ve guessed it—none of this matters to Ministers.

I am sure that this Minister is going to trot out his line that he is not against e-balloting in principle, but that the Speaker’s Commission provided evidence of concerns about safety. However, the Open Rights Group’s evidence was based on comparison between general election voting in polling stations and online voting; it made no comment on the safety and security of wider forms of online voting. In any case, the commission’s report concluded that e-balloting should be available for all electors by 2020. The Minister could easily have allowed for the option for regulations to be laid within this legislation, which would permit e-balloting to commence when any concerns he had were satisfied.

There is no genuine reason whatever why trade unions should be the only organisations in the UK that are required by legislation to use postal-only ballots for elections and ballots. If the Government were genuinely concerned about levels of electronically based elections in the private sector, they would legislate for all bodies to be required to use postal-only ballots. They will not, because they are not genuinely concerned. Thousands of private sector, voluntary and political organisations use electronic voting every year. Electoral Reform Services alone manage over 2,000 secure online ballots annually, and a recent report concluded that online voting is no less secure than postal balloting. In any case, union elections and ballots are more tightly regulated than voting systems used by other organisations, meaning even less chance of a problem.

--- Later in debate ---

[Kevin Brennan]

I think that I would be equally guilty of arrogance were I to assume the role of devolved Ministers in the Welsh Government. However, the letter from the First Minister clearly indicated that a legislative consent motion was under consideration.

[Stephen Doughty]

The Minister for Public Services, Leighton Andrews, made it clear in his oral evidence to the Select Committee that he, too, was considering the matter. He also said today that the Bill, unamended, was

“an all-out assault on the devolution settlement”.

[Kevin Brennan]

I am always slightly nervous when I give way to my hon. Friend, because his expertise on all these matters is so thorough. He is absolutely right.

--- Later in debate ---

[Ian Lavery]

If that is the figure, so be it, but in every case industrial action would have been taken through the legal process and as a last resort by individuals who need to take strike action to make their voice heard. We have the most restrictive anti-trade union legislation in the western world, and to take a day’s action or any other type of action, workers have to go through all the hoops set out in legislation.

[Stephen Doughty]

My hon. Friend is making an excellent speech. The hon. and learned Member for South East Cambridgeshire (Lucy Frazer) commented on statistics and days and hours lost. My hon. Friend will recall from Committee that the hours lost in the provision of transport in London were for reasons other than industrial action. The overwhelming majority of time lost is due to breakdowns, signal failure, overcrowding, leaves on the line and so on. Industrial action has accounted for barely 2% or 3% in most of the past 10 years. Is that not the fact that we are dealing with today?

--- Later in debate ---

[Kevin Brennan]

Whom shall I choose from the Labour Benches? I shall choose my neighbour first.

[Stephen Doughty]

There is also the absurdity that there are many other similar arrangements in place for charitable giving, cycle-to-work schemes or childcare schemes. It seems extraordinarily discriminatory to be acting in this way with regard to these voluntary arrangements for trade union subscriptions.

[Kevin Brennan]

My hon. Friend is absolutely right, and gives further power to the point that I am making and the point that the hon. Member for Stafford is trying to make by virtue of his amendment.

--- Later in debate ---

[Jeremy Lefroy]

Yes, and they do. As I mentioned in an intervention on the hon. Member for Cardiff West (Kevin Brennan), some councils make a surplus from it that goes towards their services.

As has been pointed out, clause 14 singles out union subscriptions. There is no prohibition on other deductions for which there might not be compensation to the employer, such as deductions for season tickets, which have been mentioned, or professional fees. Even on my payslip as a Member of Parliament, the top deduction every month is £2 for the Members fund. There will be no prohibition on that deduction, unless the Members fund is a national union of Members of Parliament, which I do not think it is.

Other people have made the case much more eloquently than I have, so I will not detain the House any longer on this point.

[Stephen Doughty]

The hon. Gentleman makes a convincing and measured case, and I have looked closely at the wording of his amendment and think it very reasonable. Given what he has just said, if the Government are unwilling to accept this reasoned amendment, does he think that we should test the view of the House on it this evening?

[Jeremy Lefroy]

I will wait to hear what the Minister says. He is an extremely reasonable person and there are other ways in which such things can happen. I encourage the Government to accept the amendment because I do not want to see this clause unamended in an Act of Parliament signed by Her Majesty.

Let me quote someone I greatly admire:

“In most parts of the world the suggestion that someone might be both conservative and liberal would be viewed as absurd…In the UK there is no finer tradition, no more established custom and no stronger institution than that of freedom under the law…That’s why in Anglo-Saxon countries conservatism is freedom’s doughtiest defender and why the advance of freedom gives conservatism its moral purpose.”

Those are the words of the Minister, my hon. Friend the Member for Grantham and Stamford (Nick Boles), and I entirely agree with him.

Trade Union Bill (Ninth sitting)

Stephen Doughty Excerpts

Tuesday 27th October 2015 Public Bill Committees

[The Chair]

I have to inform the hon. Gentleman that the changes are not in being yet. It is a proposal that is not as yet completed, so it therefore does not apply in this case and certainly not to this legislation.

Clause 13

Reserve powers

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

I beg to move amendment 101, in clause 13, page 9, line 31, at end insert—

‘(c) Save that no such regulation shall have the effect of altering, in respect of any of the matters to which the reserve powers may be directed, any provision of a contract of employment or a collective agreement or of limiting an employer’s discretion as to the contents of contracts of employment or collective agreements to which the employer is a party”.

It is good to be back under your chairmanship, Sir Alan, for what I hope is the last day of our line-by-line consideration of the Bill. I am sure, given the number of inconsistencies and problems that have been exposed during the course of our debates, that we are all looking forward to coming back to the Bill on Report to raise those concerns again.

Clause 13 proposes further regulation of facility time by the extension of a very wide-ranging reserve power of Ministers of the Crown. I do not wish to detain the Committee unnecessarily by repeating the fundamental arguments for why facility time is so important; I simply draw the Committee’s attention to my previous remarks. I believe there is a serious problem with the nature of the power proposed in clause 13 and how it cuts across the devolution settlement, as was touched on in the point of order from the hon. Member for Glasgow South West.

Under current legislation, trade union workplace representatives have a right to reasonable paid time off to perform certain duties. As we have previously discussed, that has huge benefits for employees and employers alike. The clause could allow the Government to cap the percentage of the employer’s pay bill that is invested in facility time. It will give the Government the power to impose an arbitrary limit on the amount of time that public sector union officials can spend on facility work during working hours. That might be time spent on negotiating improved pay and conditions; training, as outlined in section 168 of the Trade Union and Labour Relations (Consolidation) Act 1992; promoting learning opportunities as union learning reps under section 168A of the 1992 Act, which the Minister said he was very supportive of; accompanying individuals in grievance and disciplinary hearings, under section 10 of the Employment Relations Act 1999, which is a very important function that I have been involved in; or on health and safety duties and training, under the regulations made under section 2 of the Health and Safety at Work etc. Act 1974.

The potential consequences of this are deeply concerning. The Government have not set out exactly which of those duties they seek to cap or which particular sectors the clause will apply to. They are leaving themselves a very wide-ranging power for intervening. They say, as they have so often told us, “Trust us, we’re the Ministers,” but that is simply not good enough when it comes to such important matters.

The clause is particularly troubling to Opposition Members because it establishes a clear democratic deficit in three main areas. First, the provisions will mean that Government Ministers can use as yet unseen secondary legislation to push through restrictions or repeal trade union rights contained in primary legislation. While hon. Members on both sides of the Committee recognise the important role that secondary legislation plays, many would also accept that it gives Parliament less opportunity to debate and amend such regulations than would otherwise be the case.

Secondly, the provisions could prevent public sector employers, including in Scotland and Wales who have responsibility for a number of wholly devolved areas of public service provision and who have their own democratic mandate, from deciding how to manage employment relations in their workplace and how to engage with their staff.

Thirdly, the provisions mean that the Government can be selective as to which public and local authorities may be forced to impose a cap, introducing an element of significant discrimination on quite wide-ranging powers to behave in a very partisan and nakedly political way over these matters.

There are significant questions about the legality of such a change. We heard during the oral evidence stage from Professor Ewing, the Welsh and Scottish Governments and others, about the potential contraventions that the Bill provides. There is a risk that the proposal for a cap could conflict with EU law which protects the rights of health and safety representatives to paid time for their duties and training; the rights of trade union representatives to paid time off and office facilities during consultations on collective redundancies and outsourcing under their TUPE rights; and even under general information and consultation arrangements covered by the Information and Consultation of Employees Regulations.

The measures also represent a significant attack on rights that are protected by the European convention on human rights and ILO conventions. We have many questions about the clause. I hope that the Minister can explain what legal advice he has taken on the question of whether the proposal for a cap conflicts with EU law, with TUPE rights and with the Information and Consultation of Employees Regulations 2004. I would like him to be very specific on those three points.

We had a partial debate about the clause in our discussion of clause 12, and I was intrigued by some of the Minister’s comments. He promised that he would write to the Committee and he has done so. He reiterated the point he made in line-by-line consideration and said:

“I promised to write to the Committee before we debate Clause 13 to indicate who will exercise the powers in Clause 12 to require the publication of information about facility time and who may exercise the reserve powers in Clause 13 having regard to that information…It is right that Ministers have the flexibility to propose and, as a last resort, set caps on paid facility time…This will allow the relevant Minister to make regulations tailored to that. So, for example, the Secretary of State for Health will make regulations imposing publication requirements on NHS and other health employers and may exercise the reserve powers in relation to them if he considers appropriate to do so taking account of the information relating to facility time that they are required to publish.”

I am extremely concerned that this cuts across the devolution settlement. It cuts across the powers of Welsh and Scottish Ministers to make arrangements in their own sectors. The Welsh First Minister, on hearing the Minister’s comments in our sitting on Thursday and learning of the contents of the letter, has made it clear publicly that he believes it would require the consent of the Welsh Government.

Will the Minister to clarify the position because it seems to be matter of considerable debate? There are clearly conflicting legal opinions—I know which side I am on—and this is a serious matter, given the wider constitutional debates that we are having at the moment. It appears that the Secretary of State for Health or the Secretary of State for Education would use the powers in the clause to intervene in the day-to-day running of the Scottish or Welsh health services.

[Chris Stephens]

My reading of the letter indicates that there would also be interference in local government. There will be an impact, given the devolved Administrations’ funding arrangements and agreements with local government.

[Stephen Doughty]

Indeed, and the Minister skirted round this issue when we discussed it briefly. Will this power on facility time and, more broadly, the powers in the Bill apply retrospectively and therefore affect existing employment contracts up and down the land, whether in local government or devolved public authorities or in other agreements? The measure could lead to the extensive unwinding of contracts that have been entered into in good faith by individuals, employers and public sector authorities.

Furthermore, when we look at public sector contracts going forward, should Welsh and Scottish Government Ministers and local authority cabinet members engaged in discussions with their employers about the nature of the contracts and the balance of responsibilities and rights expect those contracts to be undermined at any time at the whim of a Minister of the Crown, who could strike out clauses or imply that they are not valid because of some arbitrary decision taken about facility time? I fear that this poses an extraordinarily dangerous precedent, where Ministers will be able to act in a partisan and political way to attack, for example, a local authority or a devolved Government of different political persuasion, to intervene in their powers and democratic mandate to run public services in the way they see fit.

Amendment 101 is intended specifically to prevent a breach of article 11 of the European convention, which precludes a state from negating the provisions of a collective agreement. It would prevent the Government from using regulations and powers under the clause to rewrite existing collective agreements and contracts, which is that retrospective point I made. Those contracts of employment had been voluntarily agreed by public sector employers, employees and unions, and provided union reps with time off to represent their members.

The provision would also mean that public sector employers could agree new collective agreements and contracts of employment providing union reps with time off for union duties, effectively setting aside any arbitrary cap imposed by the Government. I draw the Minister’s attention to the case of Demir and Baykara v. Turkey in 2008 in which the ECHR affirmed the fundamental right of workers to engage in collective bargaining and take collective action to achieve that end.

The power in the clause falls foul not only of legal precedents but of decisions, conventions and standards that we are party to. It would fundamentally cut across the country’s constitutional arrangements and the devolution settlements. It is extraordinarily unwise for the Government to do that, given precedents. I hope the Minister can give a fuller explanation, given the nature of those concerns.

[Chris Stephens]

I reiterate the comments I made on clause 9. This is a bad Bill and this is a bad clause. As the shadow Minister has outlined, we now know the wider implications.

I wish to confine my observations to the comments made by the Minister on Thursday, which he has followed up in writing. First, it appeals to my dry sense of humour that, having rejected amendments on publishing percentages, the Minister writes to us with percentages, in the letter on spending. I am encouraged by that and I hope the Minister will go back and consider publishing percentages on facility time.

The Committee owes a debt of gratitude to the shadow Minister for skilfully wheedling out of the Minister the prospect of the Secretary of State for Health dictating to devolved Administrations on the level of facility time. Presumably the same applies to local government. I am willing to wager that the Minister has not thought through the implications for local governments that have agreements with devolved Administrations on funding and powers through agreements or concordats. It leaves the public with the impression of a Government who conduct first-rate bullying, only days after they declared some Members second class, by a third-rate Administration whose casual approach to legislation does not even provide them with the foresight to realise the constitutional crisis they are sprinting towards.

In no other case do the UK Government have such powers to interfere or dictate to a devolved Administration how to conduct their affairs. The fact that the Government do not consider a legislative consent motion to be appropriate in these circumstances is either remarkable ignorance, gross incompetence or simply the act of a bully. This is dangerous terrain for the Government. I hope the Minister declares what discussions he has had with the devolved Administrations surrounding the reserve powers in the clause, and how they will be enacted.

These proposals are being made in the context of the Scotland and Wales Bills, which have still to conclude their parliamentary journey. It seems extraordinary that the Government can reveal their intentions at the last stages of this process. As the shadow Minister said on Thursday, creating reserve powers signals the intent to use them. The Minister must tell us what, if any, discussions he has had in that regard.

I signal our support for amendment 101. There are clear contractual obligations, and there will be clear costs to public sector employers, which will have to issue new statements of particulars or new contracts to public sector employees.

The proportion of spending on facility time is extremely low, as the Minister confirmed in his letter. Will the Government consider democratic mandates? The Conservative share of the vote at the general election in Scotland was the lowest since universal suffrage. The Conservatives have no mandate in that regard. I was considering whether to press amendment 85 to a Division but, because of the correspondence that we have received, I now feel obliged to do so.

--- Later in debate ---

[Nick Boles]

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

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

[Stephen Doughty]

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

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

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

[Nick Boles]

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

[Stephen Doughty]

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

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

[Chris Stephens]

Does the shadow Minister take the same view as I do, given the Minister’s answer, that there has been no discussion with devolved Administrations as to how this would be enacted? It should require a legislative consent motion—a point that the Minister omitted from his remarks.

[Stephen Doughty]

It is certainly the view of the Welsh and Scottish Governments that they may well require a legislative consent motion to be passed in order for the legislation to go forward. The level of consultation at a whole series of stages of the Bill, before and during the process, has been very weak. I think that is reflected in the potential undermining of the clause in many respects by existing provisions to which we are party.

--- Later in debate ---

Investigatory powers etc

[Stephen Doughty]

I beg to move amendment 53, in clause 14, page 11, line 7, leave out subsection (2).

[The Chair]

With this it will be convenient to discuss the following:

Amendment 69, in schedule 1, page 18, line 4, at end insert—

‘(b) to take representations from the trade union or unions who are the subject of such an investigation”

The amendment would require a person investigating a breach of an obligation by a union to take representations from the union concerned.

Amendment 70, in schedule 1, page 19, line 4, after “Certification Officer”, insert

“and the trade union or unions who are the subject of such an investigation”

The amendment would require the interim report of the person investigating a breach of an obligation by a union to be sent to the union concerned.

Amendment 71, in schedule 1, page 19, line 7, after “Officer”, insert

“and the trade union or unions who are the subject of such an investigation”

The amendment would require the final report of the person investigating a breach of an obligation by a union to be sent to the union concerned.

[Stephen Doughty]

After a lively start to the Committee, we now come to the provisions of the Bill that deal with the certification officer. Although the position of certification officer is familiar to many members of the Committee, it does not normally get a lot of attention, although it will in this debate because of the huge extension and change to its remit proposed by the Government.

When we debated clause 6, we discussed how the certification officer will be given powers to gather information on industrial action taken by trade union members, and how trade unions will be required to publish details of all industrial action and ballots in their annual return to the certification officer. When read in isolation, clause 6 poses a risk to the neutrality of the certification officer in the regulation of trade unions. When read alongside other clauses in the Bill, however, and particularly clause 14, it amounts to a vast extension to the role, remit and powers of that position. The clause will insert into the 1992 Act new schedule A3, which is schedule 1 to this Bill, and give effect to schedule 2, which also amends the 1992 Act. As a result of those changes, trade unions will face significant new obligations and further blue tape, as we have discussed, because they will have to report to the certification officer annually on when industrial action takes place and on political fund expenditure.

The provisions will give the certification officer new, wide-ranging investigatory powers on matters such as the register of members, elections, the political fund and union mergers. For example, if the certification officer thinks that there is good reason to do so, they will have the power to demand the production of any documents relevant to their investigation. Furthermore, if they believe that a union has failed to comply with its duty, they may appoint inspectors who can require the production of documents, as well as the attendance and assistance of any persons believed to have information relevant to the investigation. Failure to comply may lead to the certification officer imposing an enforcement order, which carries punitive sanctions.

The TUC believes that those new powers represent a major new intrusion by the state into union affairs and union members’ rights to privacy. The certification officer will—I find this quite extraordinary—be able to initiate an investigation against a trade union even though they have not received a complaint from a member of that union. That power applies to rules governing elections, political funds and union mergers. The TUC is concerned that the certification officer will be expected to act on complaints and intelligence provided by third parties, including employers. We need to discuss that in detail because it provides wide grounds for fishing expeditions, sabotage actions and engagement by people who are not involved in a dispute, but simply want to cause problems, and to provoke legal proceedings and investigation or action by the certification officer.

We have heard from many people who are concerned about the provisions, and such concerns were reaffirmed in oral evidence by legal experts including Thompsons Solicitors. The United Kingdom’s judicial system is lauded by many around the world, and the Minister should note how its founding principles stand in complete contrast to how the certification officer will be able to act. It is important for the Committee to understand that the certification officer will have the power to bring a complaint against a trade union, to investigate the issue, to decide which witnesses will be called, to cross-examine them, to make a decision on the matter, and then to impose a fine on the union that they have investigated and on which they have adjudicated. I cannot overemphasise the point, which was also made by many of our witnesses, that this is simply not consistent with the principles of natural justice or the founding principles of our legal system, which include many checks and balances, not least the separation of powers.

It is quite extraordinary that this is taking place in an era when we have finally done away with some of the anachronisms of our constitutional arrangements. As the Minister mentioned, we have been having many discussions about this—I am sure that we could have a lengthy one about the other House if we wished to—and the fact is that in recent years we have moved forward. We have separated out the roles, and we no longer have the head of the judiciary sitting as the Chair of proceedings in the other place, as a member of the Executive and of the Cabinet, while that Chamber also acted as the highest court of appeal in this land. That was separated out, and we now have the Supreme Court, the independent Judicial Appointments Commission, a Lord Chancellor who is a member of the Cabinet but not of the other place, and so on and so forth. We have taken that step, and rightfully so, to separate the Executive from the judiciary and to remove the blurring of powers, yet the Government are now effectively merging all those powers together in the role of someone who, I am pretty sure, would not want those powers in the first place, and has had a very limited role until this point.

This seems to be an attempt to politicise a position so that it can be used in a very wide-ranging way, and to interfere fundamentally with the rights of trade union members up and down this country. When the provisions are considered alongside other clauses in the Bill, they do look very sinister. I am sure that the Minister will say, “Oh don’t worry, it will be fine. The certification officer will only engage once in a while if something really terrible happens,” and so on and so forth, yet he is proposing to grant huge, wide-ranging powers which, given the previous clauses we have debated, are deeply sinister. We believe that this clause and the relevant schedules are excessive, so we shall oppose them.

I turn briefly to our amendments. Amendment 53 would prevent the insertion into the 1992 Act of schedule 1, which provides for the certification officer’s new investigatory powers. Amendment 69 would provide that any person investigating a breach of an obligation by a union must allow that union to make representations before any decision is taken, which would be absolutely consistent with the principles of natural justice. I find it extraordinary that it is the certification officer who will decide which witnesses to call and to whom they will speak before making a decision. If we are talking about powers that affect the rights of trade unions, it is crucial that, at the very least, those involved should be allowed to make representations that are relevant to the matter at hand.

Amendment 70 would require any person carrying out an investigation to send the union a copy of the interim report at the same time that it is sent to the certification officer. Again, that is only fair. If such decisions are being made, at the very least the parties to the dispute should receive a copy of the report. Amendment 71 would require that the final report relating to an investigation would also be sent to a relevant union.

I hope that the Minister can explain both the intent behind these wide-ranging changes—we will come on to other parts of the role shortly—and how the process sits with the principles of natural justice in this country. I hope that he will also set out whether there will be any safeguards to prevent the officer from interfering unwillingly, or from being forced to interfere in the affairs of unions without just cause.

[Jo Stevens]

It is a pleasure to serve under your chairmanship, Sir Alan.

The Bill would, if enacted, fundamentally change the role of the certification officer from a neutral arbiter of disputes to a state snooper and enforcer. We have heard the concerns of legal experts, Liberty and others about the implications of these changes for civil liberties, and about the likelihood that they infringe article 6 of the European convention on human rights, on the right to a free trial, and well-established principles in common law on natural justice. No one should sit as a judge in their own cause.

I repeat those concerns today, for the record, in the light of the Government’s changes to the ministerial code, which were quietly sneaked out last Thursday via a ministerial statement in the other place. Until the code was changed last week, it used to refer in its opening paragraphs to an

“overarching duty on ministers to comply with the law including international law and treaty obligations and to uphold the administration of justice and to protect the integrity of public life”.

That duty to comply with international law and treaty obligations, and to uphold the administration of justice, has just been deleted from the ministerial code. It may be a complete coincidence that, at the very point when this Bill is coming under a barrage of expert criticism for its breaches of international law and treaty obligations, the Government have decided to do away with the requirement for Ministers to uphold those laws. Will the Minister explain what possible justification there is for such a change to the standards against which Ministers are held accountable? Why was not Parliament consulted on the change?

--- Later in debate ---

[Nick Boles]

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

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

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

[Stephen Doughty]

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

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

Amendment, by leave, withdrawn.

[Stephen Doughty]

I beg to move amendment 54, in clause 14, page 11, line 9, leave out subsection (3).

[The Chair]

With this it will be convenient to discuss the following:

Amendment 55, in clause 14, page 11, line 11, at end insert—

‘(4) For the purposes of this section and the Schedules to which it gives effect complainant and applicant must be—

(a) a member of the union which is the subject of the complaint or application.”

Amendment 66, in schedule 1, page 17, line 7, leave out “or any other person”.

The amendment would restrict the power to require the production of documents to the Certification Officer and his or her staff.

Amendment 67, in schedule 1, page 17, line 47, after “obligation,”, insert

“where a complaint has been received from a member of the relevant trade union, and where there the Certification Officer reasonably believes there is evidence that indicates a breach of a relevant obligation”.

The amendment would require a complaint to be made by a union member and for the Certification Officer to reasonably believe there was evidence of a breach of an obligation before the Certification Officer initiated an investigation.

Amendment 68, in schedule 1, page 18, line 1, leave out “or other persons”.

The amendment would require a person investigating a breach of an obligation by a union to be a member of staff of the Certification Officer.

Amendment 56, in clause 15, page 11, line 16, after “32ZB”, insert

“and where a valid complaint has been made by a member of the trade union or unions relevant”.

The amendment would provide that only after a valid complaint from a union member can the Certification Officer make a declaration that he is satisfied that a union has failed to comply with the requirements for the annual return in respect of industrial action or political expenditure.

Amendment 57, in clause 15, page 12, leave out lines 16 to 19.

The amendment would prevent a union member who was not party to a complaint giving rise to an enforcement order implementing the order.

Amendment 58, in clause 16, page 13, line 3, leave out

“the applicant or a person mentioned in subsection (5B)”.

The amendment would limit enforcement powers to the Certification Officer.

Amendment 59, in clause 16, page 13, line 6, leave out “or the applicant”.

The amendment would limit enforcement powers to the Certification Officer.

Amendment 60, in clause 16, page 13, line 9, leave out

“the applicant or a person mentioned in subsection (6)”.

The amendment would limit enforcement powers to the Certification Officer.

Amendment 61, in clause 16, page 13, line 12, leave out

“the applicant or a person mentioned in subsection (5C)”.

The amendment would limit enforcement powers to the Certification Officer.

Amendment 62, in clause 16, page 13, line 15, leave out

“the applicant or a person mentioned in subsection (8)”.

The amendment would limit enforcement powers to the Certification Officer.

Amendment 63, in clause 16, page 13, line 18, leave out

“the applicant or a person mentioned in subsection (5C)”.

The amendment would limit enforcement powers to the Certification Officer.

Amendment 64, in clause 16, page 13, line 21, leave out

“the complainant or a person mentioned in subsection (4A)”.

The amendment would limit enforcement powers to the Certification Officer.

Amendment 65, in clause 16, page 13, line 25, leave out

“the applicant or a person mentioned in subsection (7)”.

The amendment would limit enforcement powers to the Certification Officer.

[Stephen Doughty]

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

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

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

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

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

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

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

[Nick Boles]

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

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

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

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

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

[Stephen Doughty]

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

[Nick Boles]

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

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

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

[Stephen Doughty]

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

[Nick Boles]

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

[Stephen Doughty]

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

[Nick Boles]

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

[Nick Boles]

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

[Stephen Doughty]

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

Amendment, by leave, withdrawn.

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

[The Chair]

With this it will be convenient to discuss the following:

New clause 7—Certification Officer—

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

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

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

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

New clause 10—The Certification Officer—

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

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

[Nick Boles]

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

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

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

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

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

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

[Stephen Doughty]

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

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

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

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

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

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

[Chris Stephens]

As the shadow Minister said, the new clauses really deal with who should be the certification officer. If the powers are being enhanced, the new role needs to be reconsidered, because—the shadow Minister is correct—it is at the very least quasi-judicial. The aim of new clause 7 is to ensure that the holder of the post has adequate qualifications and expertise.

The Minister has said he expects the person appointed to have expertise in trade union law, but his successors may not. An adequate provision would make it clear, as the new clause does, that the certification officer should have expertise in trade union law. It cannot be someone we met down the pub, who may be able to recite all the clauses of the Bill. It needs to be someone of a very high standard, with expertise in trade union law, who knows the intricacies of that law. More importantly, the person should be independent of Government, and that is why it is appropriate in the circumstances to involve the Judicial Appointments Commission.

The new clause has another purpose. As the Minister pointed out, there is currently an assistant for Scotland. The enhanced role will have an impact on elections where they are now devolved to the Scottish Parliament, in terms of Scottish parliamentary and local government elections. If there are questions about election funding, that will be a Scottish issue and we believe it would require a certification officer in Scotland to consider it.

Also, there are differences between the legal jurisdictions. There is different civil and criminal law in Scotland, and we believe the new provisions about the certification officer can only impinge on the consideration of civil and criminal law in relation to complaints and so on. The effect of the certification officer provisions will be that Scotland will need not an assistant but a certification officer of equal status to the certification officer for Great Britain.

We have no issue with new clause 10 and we will support it in a vote, but we are seeking a Scottish provision of equal status due to the impacts that the new role of a certification officer will have.

[Nick Boles]

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

[Stephen Doughty]

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

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

--- Later in debate ---

[Nick Boles]

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

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

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

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

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

[Stephen Doughty]

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

Amendment 94 agreed to.

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

--- Later in debate ---

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

[Stephen Doughty]

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

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

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

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

[Nick Boles]

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

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

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

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

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

[Stephen Doughty]

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

[Nick Boles]

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

--- Later in debate ---

[Nick Boles]

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

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

[Stephen Doughty]

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

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

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

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

[Nick Boles]

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

--- Later in debate ---

[Nick Boles]

I am going to make some progress.

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

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

[Stephen Doughty]

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

Trade Union Bill (Tenth sitting)

Stephen Doughty Excerpts

Tuesday 27th October 2015 Public Bill Committees

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

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

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

[Nick Boles]

Nothing would give me greater pleasure.

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

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

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

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

[Stephen Doughty]

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

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

--- Later in debate ---

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

[Stephen Doughty]

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

[Nick Boles]

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

Question put, That the amendment be made.

--- Later in debate ---

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

[Stephen Doughty]

Again, I would not normally rise to speak on such a clause, but I want to do so to underline the very many points that have been made about the potential conflict with the devolution settlement. Much of the Bill makes changes to the 1992 Act, which came into effect long before the advent of devolution in Scotland and Wales and, indeed, London, and before the increased devolution to local authorities and mayors throughout England. I merely take this opportunity to underline that point and to give the Minister another chance to say when he plans to meet his cabinet colleagues the Secretaries of State for Wales and for Scotland and when he plans to engage in discussions with the First Ministers of Scotland and Wales and the leaders of devolved local authorities across England to discuss the concerns that have been raised and whether the Bill should be amended further on Report or, indeed, in the other place.

--- Later in debate ---

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

[Stephen Doughty]

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

[Nick Boles]

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

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

[Stephen Doughty]

Briefly, I can think of many other names that would be suitable for this Bill, but I am sure that you, Sir Edward, would rule them out as unparliamentary. We intend to go on the way we have done throughout the Bill, and we will oppose this clause as well.

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

--- Later in debate ---

[Nick Boles]

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

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

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

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

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

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

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

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

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

[Stephen Doughty]

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

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

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

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

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

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

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

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

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

As I was listening to my hon. Friend’s excellent speech, I was thinking about potential ramifications of this and I would be interested to hear the Minister’s response. For example, if an accountant working for a council is a chartered accountant paying annual fees, does that come out of his pay packet in certain circumstances, in much the same way as check-off does? If a nurse pays annual fees to be registered as a nurse, does that come out of their pay packet as well?

[Stephen Doughty]

My hon. Friend makes an excellent point, one we discussed during the oral evidence sessions as well as here: there are many things that are deducted in the same format as check-off. We as MPs are allowed to make salary deductions for various things, from repayments of loans to charitable donations. Again, this is one rule for trade unions and another for everybody else and it is simply not acceptable. I hope the Minister will provide an explanation and more detail on that provision and a definition of what is a “reasonable” transition period.

The Minister will be aware of the specific concerns outlined by the TUC that trade unions will be required to sign members up to direct debit payments at the same time as needing to comply with the other significant legislative changes in the Bill. Those include encouraging millions of members within just three months to opt in to the union’s political fund, even though they have voluntarily contributed for many years, gathering additional information for the certification officer and complying with the oodles and oodles of red tape and blue tape that are being put in by the Bill, let alone previous provisions such as those introduced by the gagging Act. In these circumstances, the need for significant time to allow unions to move their members on to direct debit is very clear.

As I have argued throughout this Bill, the Government are not pursuing a plan for modern and forward-looking industrial relations. They are trying to turn the clock back and offering solutions to the problems of yesteryear.

[Tom Blenkinsop]

I have just thought of another question. This goes back to my industrial background working with predominantly female workforces in the textile industry. Many did not have bank accounts, but were trade union members and worked on piecework rates. How will they be affected if they are disfranchised, rendered unable to join a trade union at all because they do not have a bank account?

--- Later in debate ---

[Stephen Doughty]

That is an excellent point on which I would like to hear from the Minister. Whether we like it or not, many people, particularly on low incomes or starting out on their careers, do not have bank accounts. What provision will be made for them? If they do not have a bank account, how will they be able to make these payments?

As I have said, in reality, deductions from payroll are a very common way that employers across the public and private sectors help employees to manage their finances. I mentioned examples that apply to us as Members of Parliament, but we often see things such as childcare, travel, bike loans or computer payments made through similar payroll deductions. The proposed ban on check-off for union subscriptions will affect millions who currently choose to do that through their wages. We oppose new clause 11 and call on the Government to withdraw it. At the very least, I hope that the Minister will engage with employers and trade unions in the period between Committee and Report, so that we can have some clarity when he comes back to the House on how long the transition and implementation period will be and whether accommodations can be made.

Amendment (a) enjoys the formal support of myself and my hon. Friends the Members for Wallasey (Ms Eagle) and for Edinburgh South (Ian Murray). It is an SNP amendment on securing active consent from the different parts of the UK before the ban on check-off arrangements can apply elsewhere. Were the hon. Member for Glasgow South West to push this to a vote he would certainly have our support.

--- Later in debate ---

[Nick Boles]

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

[Stephen Doughty]

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

[Nick Boles]

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

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

--- Later in debate ---

[Nick Boles]

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

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

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

[Stephen Doughty]

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

[Nick Boles]

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

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

--- Later in debate ---

[Chris Stephens]

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

I refer to remarks I made when we were discussing the proposed schedule to the Bill that interference in political funds in this way is a democratic and constitutional outrage. Trying to suggest, or even thinking, that political advantage is to be gained by changing political funds in this way is wrong. As we have already heard, the approach being taken on this Bill breaches the Churchill convention.

The purpose of the new clause is to ensure that Government will try and seek agreement with all political parties. This is important because it is not just the Labour party that has benefited from trade union funds. Plaid Cymru candidates have received money from trade unions, as have SNP candidates, Green party candidates and candidates from various socialist parties in all their guises. We simply propose a mechanism for dealing with political fund arrangements and to take a gold standard approach to these matters.

[Stephen Doughty]

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

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

[Nick Boles]

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

[Stephen Doughty]

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

[Nick Boles]

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

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

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

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

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

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

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[Dr Cameron]

My hon. Friend makes an extremely good point. We have heard it time and again not just from the workers to whom he refers, but from healthcare and other workers.

The drawbacks of allowing agency staff to be used in this way are recognised by other European countries. By repealing the current legislation, the UK Government would become an outlier in this regard, as the majority of other European countries prohibit or severely restrict the use of agency workers during industrial disputes. In effect, this would be taking us back in time to the 1970s—a time when workers were pitted against one another. Often, that led to greater discord and disharmony for all, but particularly for the ordinary working person, who had difficulty sustaining their livelihood.

Again, this is partisan legislation and it is just not right. Our new clause is designed to ensure that agency workers would not be brought in. It states that a business

“shall not introduce or supply a work-seeker to a hirer to perform…the duties normally performed by a worker who is taking part in a strike or other industrial action…or…the duties normally performed by any other worker employed by the hirer and who is assigned by the hirer to perform the duties normally performed by the first worker”.

The new clause is designed to give the everyday worker in public services the same rights as others. It would give them the ability to engage in right and proper action as a last resort when they have to but not have their causes undermined. As we have heard, the public do not want that and it would also potentially undermine safety. I therefore look forward to the Minister’s response.

[Stephen Doughty]

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

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

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

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

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

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

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

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

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

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

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

The TUC makes clear in its evidence that

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

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

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

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

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

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

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

[Nick Boles]

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

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

[Stephen Doughty]

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

[Nick Boles]

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

--- Later in debate ---

Division 50

Ayes: 7

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Labour: 5
Scottish National Party: 2

Noes: 10

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Conservative: 10

[Stephen Doughty]

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

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

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

[Nick Boles]

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

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

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

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

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

Trade Union Bill (Eighth sitting)

Stephen Doughty Excerpts

Thursday 22nd October 2015 Public Bill Committees

[Ian Mearns (Gateshead) (Lab)]

It is a pleasure to serve under your chairmanship again, Sir Edward. The clause represents nothing less than a cynical attempt by the Government to restrict the political rights of millions of working people in this country. The Government claim that trade union members will retain the right to opt in to political campaigns if they so wish, but in reality they know that this will effectively end trade unions’ ability to represent their members’ political aspirations.

Let us be clear from the outset: trade union political funds are not and never have been solely about donations to the Labour party. Indeed, a significant proportion of the TUC’s member unions—unions such as the Fire Brigades Union, the National Union of Rail, Maritime and Transport Workers, the National Union of Teachers, the Public and Commercial Services Union, NASUWT and the Association of Teachers and Lecturers—are not affiliated with and have no connection to the Labour party. There are, however, many millions of members across such unions.

Trade unions represent those members’ interests in the workplace. They negotiate wages, health and safety, conditions of service and various terms of employment. However, workers’ interests do not end in the workplace. They have family lives and interests outside of work. Workers care about the quality of their children’s education. They care about housing conditions, the quality of our health service, our public services and many other aspects of everyday life that cannot be negotiated with an employer. Trade union political funds exist for that very reason: to campaign on those topics and areas of interest.

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

My hon. Friend makes an important point. USDAW’s “Freedom from Fear” campaign, for example, is about tackling the intimidation of and violence against shop workers, but it has nothing to do USDAW’s funding of the Labour party. It is a very important campaign that I have attended representations of. USDAW is concerned that it will fall within the scope of this measure, as a result of the legislation.

[Ian Mearns]

I concur entirely with my hon. Friend.

Every single trade union member is fully entitled to participate in the democratic processes of the union of which they are a member. The policies that the union may campaign on are democratically decided by those members through the trade union’s internal democratic structure. The Government, and their friends in places such as the Daily Mail, try to portray union political funds as personal gifts from people such as Len McCluskey, Dave Prentis or Sir Paul Kenny, designed to buy influence in the Labour party. I know all those individuals, and none of them has ever told me what to do. I maintain my independence from them. I listen to them closely and carefully, but I have never received an instruction from any one of them.

By contrast, the Conservative party, which last year alone received nearly £29 million in private donations from the rich and powerful, has no concept of the unfairness of this measure. I will compare and contrast, because the money siphoned into political campaigns and political parties such as the Labour party is very open and transparent in its transmission and its source. It comes from the very small individual weekly or monthly donations of hundreds of thousands, if not millions, of trade union members. That money is easily trackable and auditable.

--- Later in debate ---

[Nick Boles]

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

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

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

[Stephen Doughty]

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

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

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

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

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

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

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

Amendment, by leave, withdrawn.

[Nick Boles]

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

‘(3) The first renewal date—

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

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

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

--- Later in debate ---

[Nick Boles]

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

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

[Stephen Doughty]

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

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

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

[Chris Stephens]

Is the shadow Minister aware of anyone who wants to change from 10 to five years?

[Stephen Doughty]

No, I am not aware of that. The point that has been made consistently to me by the unions and others who would be affected is that, of course, people can opt out at any point. The idea that people make political choices only at a fixed point every so many years is wrong. People can change their political affiliations and views about political campaigns their union might be engaged in or running—whether they were well run or had a good purpose—and that might cause them to decide at some point to decide to opt out of the fund. Obviously, I hope they do not but that is a choice they can make. They can do that, unlike shareholders in corporations, who cannot opt out once their company is making donations to the Conservative party, for example—let alone the examples given by my hon. Friend the Member for Gateshead, which horrified me. I am a fan of Soreen malt loaf and had no idea that I was unwittingly contributing to the Conservative party through that. The Government are fond of declaratory statements on ballots; perhaps there should be one on every malt loaf, saying, “Be aware that you are giving to the Tories.”

The whole debate exposes the inconsistencies that the Bill creates.

[Ian Mearns]

I used to be rather fond of Soreen malt loaf, until I discovered the awful truth. I think it could have a public health warning: “Eating Soreen malt loaf could be detrimental to your health service.” [Interruption.]

[Stephen Doughty]

My hon. Friend makes a witty observation, and I heard the Government Whip—

[The Chair]

And I know the hon. Gentleman will get back on the beaten track.

[Stephen Doughty]

Yes, we are going to do that. The Government Whip suggested we have another slice, but I am pretty sure I will not be having any further slices of malt loaf.

As I said, I do not have a lot to say about the Government amendments, which are technical and in the spirit of the Government’s intentions, which we oppose; but I would like to test our amendment 36, on keeping the relevant period at 10 years, in a vote.

Amendment 91 agreed to.

Amendment proposed: 36, in clause 10, page 6, line 8, leave out “five years” and insert “ten years”.—(Stephen Doughty.)

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

Question put, That the amendment be made.

Division 20

Ayes: 7

---

Labour: 5
Scottish National Party: 2

Noes: 9

---

Conservative: 9

[Stephen Doughty]

I beg to move amendment 39, in clause 10, page 6, line 23, at end insert “or by electronic means”

The amendment would allow opt-in, renewal and withdrawal notices to be given via electronic communications.

[The Chair]

With this it will be convenient to discuss the following:

New clause 1—“Voting by electronic means in trade union ballots for industrial action—

‘(1) Trade union members shall be permitted to vote by electronic means for the purposes of Part V of the 1992 Act (Industrial Action) with effect from the commencement date for sections 2 and 3.

(2) In this section “electronic means” means such electronic means, including means of secure voting electronically in the workplace, as is, or are determined by the union and, in a case in which section 226B of the 1992 Act (Appointment of Scrutineer) imposes an obligation on the union, confirmed by the person appointed in accordance with that section, before the opening day of the ballot as meeting the required standard.

(3) Where electronic means are determined by the union, and, if applicable, confirmed by the person appointed under section 226B of the Act as meeting the required standard as provided for in subsection (2), the means of voting in the ballot shall also include postal voting where determined by the union and, in a case in which section 226B of the 1992 Act (Appointment of Scrutineer) imposes an obligation on the union, confirmed by the person appointed in accordance with that section as being reasonably necessary to ensure that the required standard is satisfied.

(4) For the purpose of subsections (2) and (3), a means of electronic voting satisfies “the required standard” for the ballot if, so far as reasonably practicable:

(a) those entitled to vote have an opportunity to do so;

(b) votes cast are secret; and

(c) the risk of any unfairness or malpractice is minimised.

(5) In relation to the ballots referred to in subsection (1):

(a) the employer shall be under a duty to co-operate generally in connection with the ballot with the union, which shall include not undertaking surveillance of, intercepting or otherwise interfering with any communications between the union and its members, and with any person appointed in accordance with section 226B of the 1992 Act (Appointment of Scrutineer); and

(b) every person who is entitled to vote in the ballot shall be permitted to do so without interference or constraint imposed by any employer of the union’s members, or any of its employees or any person its behalf.

(6) Where in any proceedings an employer claims, or will claim, that a union has failed to comply with any requirement referred to in section 226 of the 1992 Act (Requirement of ballot before action by trade union), the union will have a complete defence to those proceedings if the employer has failed to comply with any part of its duty under subsection (5)(a) or it, or any of its employees or any person on its behalf, has imposed any interference or constraint of a type referred to in subsection (5)(b).

(7) Any provision of the Act shall be disapplied to the extent necessary to give effect to this section.”

The new clause would permit electronic voting in ballots for industrial action.

New clause 2—“Voting by electronic means in trade union ballots—

‘(1) The provisions in section [new clause 2] apply to ballots and elections for the purposes of Chapters IV (elections for certain positions), VI (political resolutions) and VII (approval of instruments of amalgamation or transfer) of the 1992 Act.

(2) The electronic means adopted for the purposes of subsection (1) must also be capable of allowing union members to vote in ballots and elections for the purposes of Chapters IV (elections for certain positions), VI (political resolutions) and VII (approval of instruments of amalgamating or transfer) of the 1992 Act.”

The new clause would permit electronic voting in union elections and ballots other than those for industrial action..

New clause 4—“Secure workplace ballots for industrial action—

‘(1) Trade union members shall be permitted to vote in person at their place of work by means of a secure workplace ballot for the purposes of Part V of the 1992 Act (Industrial Action) with effect from the commencement date for sections 2 and 3.

(2) In this section “secure workplace ballot” means a ballot in which votes may be cast in the workplace by such means as is or are determined by the union. These may, but are not required to, include electronic means and, in a case in which section 226B of the 1992 Act (Appointment of Scrutineer) imposes an obligation on the union to ensure that the required standard is satisfied, confirmed by the person appointed in accordance with that section, before the opening day of the ballot as meeting the required standard.

(3) For the purpose of subsection (2), a workplace ballot satisfies “the required standard” if, so far as reasonably practicable:

(a) those entitled to vote have an opportunity to do so;

(b) those entitled to vote can do so in privacy;

(c) votes cast are secret; and

(d) the risk of any unfairness or malpractice is minimised.

(4) In relation to the ballots referred to in subsection (1):

(a) the employer shall be under a duty to co-operate generally in connection with the ballot with the union, which shall include not undertaking surveillance of, intercepting or otherwise interfering with any communications between the union and its members, and with any person appointed in accordance with section 226B of the 1992 Act (Appointment of Scrutineer); and

(b) every person who is entitled to vote in the ballot shall be permitted to do so without interference or constraint imposed by any employer of the union’s members, or any of its employees or any person its behalf.

(5) Where in any proceedings an employer claims, or will claim, that a union has failed to comply with any requirement referred to in section 226 of the 1992 Act (Requirement of ballot before action by trade union), the union will have a complete defence to those proceedings if the employer has failed to comply with any part of its duty under subsection (5)(a) or it, or any of its employees or any person on its behalf, has imposed any interference or constraint of a type referred to in subsection (5)(b).

(6) Any provision of the Act shall be disapplied to the extent necessary to give effect to this section.”

The new clause would permit secure workplace ballots for industrial action. These can involve electronic or non-electronic means.

New clause 5—“Workplace balloting and voting for trade union elections and other matters—

‘(1) The provisions in section [NC4] shall apply to ballots and elections for the purposes of Chapters IV (elections for certain positions), VI (political resolutions) and VII (approval of instruments of amalgamation or transfer) of the 1992 Act.

(2) The arrangements adopted for the purposes of subsection (1) shall allow union members to vote in workplace ballots for the purposes of Chapters IV (elections for certain positions), VI (political resolutions) and VII (approval of instruments of amalgamating or transfer) of the 1992 Act.”

The new clause would permit secure workplace ballots in union elections and ballots other than those for industrial action.

New clause 6—“Methods of voting in ballots for industrial action, trade union elections and other matters—

‘(1) Voting in a ballot or election carried out to meet the requirements of the 1992 Act as amended can be carried out by postal ballot, electronic means, secure workplace ballot or a combination of these methods.

(2) The combination of methods is to be determined by the union and, in a case in which section 226B of the 1992 Act (Appointment of Scrutineer) imposes an obligation on the union, confirmed by the person appointed in accordance with that section, before the opening day of the ballot.”

New clause 8—“Workplace ballots and ballots by electronic means—

‘(1) Workplace ballots and balloting by electronic means, shall be permitted in the types of trade union ballots specified in subsection (2) with effect from the commencement date for sections 2 and 3 (Ballot thresholds for industrial action);

(2) The types of trade union ballots to which subsections (1) and (3) apply are those referred to in Chapters IV (elections for certain positions), V (industrial action), VI (political resolutions) and VII (approval of instruments of amalgamation or transfer).

(3) In relation to the ballots referred to in subsection (2):

(a) the employer shall be under a duty to co-operate generally in connection with the ballot with the union, which shall include not undertaking surveillance of, intercepting or otherwise interfering with any communications between the union and its members, and with any person appointed in accordance with section 226B of the Act (Appointment of Scrutineer); and

(b) every person who is entitled to vote in the ballot shall be permitted to do so without interference or constraint imposed by any employer of the union’s members, or any of its employees or any person its behalf.

(4) Where in any proceedings an employer claims, or will claim, that a union has failed to comply with any requirement referred to in subsection 226 of the Act (Requirement of ballot before action by trade union), the union will have a complete defence to those proceedings if the employer has failed to comply with any part of its duty under subsection (3)(a) or it, or any of its employees or any person on its behalf, has imposed any interference or constraint of a type referred to in subsection (3)(b).

(5) In this section:

(a) “Workplace ballot” means a ballot in which votes may be cast in the workplace by such means as is or are determined by the union. Such means of voting in the workplace determined by the union may, but are not required to, include electronic means; and

(b) “electronic means” means such electronic means as is or determined by the union and, in each case, where section 226B of the Act (Appointment of Scrutineer) imposes an obligation on the union, is confirmed by the person appointed in accordance with that section, before the opening day of the ballot as meeting the required standard.

(6) Where electronic means are determined by the union, and, if applicable, confirmed by the person appointed under section 226B of the Act as meeting the required standard as provided for in subsection (5), the means of voting in the ballot shall also include postal voting, or some means of voting in a workplace ballot other than electronic means, where determined by the union and, in a case in which section 226B of the Act imposes an obligation on the union (Appointment of Scrutineer), confirmed by the person appointed in accordance with that section as being reasonably necessary to ensure that the required standard is satisfied.

(7) For the purpose of subsections (5) and (6), a workplace ballot or means of electronic voting satisfies ‘the required standard’ for the ballot if, so far as reasonably practicable:

(a) those entitled to vote have an opportunity to do so;

(b) votes cast are secret; and

(c) the risk of any unfairness or malpractice is minimised.

(8) Any provision of the Act shall be disapplied to the extent necessary to give effect to this section.”

[Stephen Doughty]

In this group, new clause 8 was tabled not by me, but by the hon. Member for Glasgow South West. However, I am sure that we will debate it, because the effects are similar.

I want to outline the rationale for tabling the amendment and new clauses. I think it will help the Committee if I make it clear that amendment 39 relates to the use of electronic methods under clause 10, but the new clauses are about matters we have already discussed on balloting, and other related matters such as the extension of the provisions to other ballots, and combination ballots.

Throughout the oral evidence and our line-by-line consideration of the measure, the Minister has sought to dress up the Trade Union Bill as modernisation, but the Government’s continued refusal to introduce e-balloting and secure workplace balloting demonstrates that they are not serious about modernisation. The Government seem more hellbent on legislating to try to ensure they are a relic of our industrial past.

The nature of our country’s economy now—and it is likely to be in decades to come—is such that the insatiable pace of technological progress must be embraced. As a modern progressive, I am entirely comfortable with that. Indeed, recent figures from Ofcom show that to be the case in households across the UK, with 83% of people now having access to broadband and 66% of households owning a smartphone. I listened with great interest in the Chamber yesterday to the Minister for the Cabinet Office and Paymaster General, who we know is one of the sinister architects of the Bill, sitting in the shadows of the Cabinet Office. He extolled with great alacrity the benefits of the Government Digital Service and the digitisation of Government services. He gave specific examples, such as the online sell-off of shares in Lloyds, which the Government are disposing of.

I agree with my hon. Friend the Member for Newcastle upon Tyne Central (Chi Onwurah), who asked the Minister for the Cabinet Office a question yesterday, that there are things left wanting in the progress of the Government Digital Service. The fact is, however, that the Government seem very willing to move ahead with online and electronic systems in other areas for what are often complex legal or financial services. Clearly, high levels of security and assuredness are required when citizens are taking part in those processes.

The case for an online option in balloting grows stronger still: e-balloting can be safe and secure, much like online banking. As we heard during the oral evidence sessions, e-balloting is already used for a variety of purposes by organisations in both the public and private sector, such as J.P. Morgan Asset Management, Lloyd’s of London, Chevron and, of course, the Conservative party, which recently selected its London mayoral candidate using e-balloting.

Our new clauses contain safeguards to ensure safety. Under each of those, the balloting process, whether electronic or secure workplace balloting, would be overseen by an independent scrutineer. Before the ballot is run, the scrutineer would confirm that the proposed method of voting met the required standard. The standard requires that: all members who are entitled to vote must have an opportunity to do so; votes must be cast in secret; and the risk of any unfairness or malpractice is minimised. That required standard is the same as the one set out in section 54 of the Employment Relations Act 2004.

The new clauses would allow unions to use postal ballots alongside electronic or secure workplace voting if they believed it necessary to ensure everyone has the chance to vote. That would ensure that members who may be absent from work due to sick leave or maternity, paternity or adoption leave can vote. The new clauses would also allow unions to provide members with a choice of voting methods, including postal and electronic balloting and secure workplace balloting. We call that a combination ballot, where a maximum number of means are used to ensure maximum participation in and engagement with the democratic process the Government say they are so keen to support.

The new clauses place duties on employers to co-operate with the union and the scrutineer during a ballot or election, mirroring duties that already apply to employers during statutory recognition ballots held under schedule A1 to the 1992 Act. For example, employers should ensure that firewalls do not prevent union emails from reaching members and that websites are not blocked. It is common practice in workplaces holding elections to staff associations or information and consultation forums for employers to work with balloting agencies to ensure that firewalls do not block email communications.

Safe places should also be provided for voting free from surveillance by management. That is important, given the concerns we have heard about blacklisting and issues of data protection and sensitivity that would certainly apply when it comes to secure workplace balloting. Employers would also be under a duty to ensure that union members can vote free from interference or constraint. That mirrors an existing duty on unions and is therefore even-handed. If an employer failed to comply with those duties—for example, by intercepting members’ voting papers or emails relating to the ballot—the union would have a complete defence from any legal challenges that it had failed to run the ballot properly.

I want to turn to safe and secure workplace ballots. We have set out the issues clearly and concisely in our new clauses; I now want to go into the detail of this option. In addition to using electronic voting, workplace ballots should be permitted for statutory union elections and other ballots. Importantly, the 1992 Act already permits workplace ballots to be used for statutory recognition ballots, under schedule A1. Workplace ballots of this nature are secure and are overseen by the qualified independent persons or QIPs. The individuals and balloting agencies permitted to act as QIPs for statutory recognition ballots are generally the same as those that act as scrutineers in industrial action ballots and other statutory union elections and ballots.

Until March 2015, 233 ballots for statutory recognition had been held, 61 of which involved a combination ballot—very much like what we propose in our new clauses—including both workplace ballots and postal ballots for those absent from work when the ballot was taking place. Five ballots had been held on the basis of workplace-only voting and 157 postal-only ballots had also been organised. An analysis of Central Arbitration Committee reports indicates that turnout tends to be significantly higher, as one would expect, in ballots where all workers voted in the workplace, where average turnout was 88%, and in combination ballots, where the average turnout was 86.9%. The average turnout in postal-only ballots was 71.6%.

There is no evidence that individuals felt pressurised to vote in support of union recognition where workplace ballots took place. Workers voting in postal-only ballots were more likely to vote for union recognition than those voting in the workplace. In 66% of workplaces where there was a postal-only ballot, workers voted for statutory recognition, compared with 60% of workplaces using workplace-only voting and 56% of workplaces holding combination ballots. Nor is there any evidence that workers feel intimidated into voting a particular way where ballots take place in the workplace. It is important for the Committee to note that the CAC has received a total of only seven complaints of unfair practices by employers or unions during statutory recognition ballots since 2004, when new protections were introduced. Of the complaints that the CAC were asked to decide upon, five were made by unions and one by an employer, but none were upheld.

I can think of no organisation besides trade unions where technological change and progress is not merely discouraged, but prohibited by proscriptive legislation. Trade unions must be allowed to modernise and bring balloting into the 21st century. This would not only serve to boost turnout and participation—vital reason though that is, given the arbitrary thresholds the Government are introducing in this Bill, which are rarely used elsewhere in our democracy, not even in recent referendums—but improve trade union democracy. Not only that, but the use of postal-only ballots can unnecessarily extend the voting period, which can be detrimental to good industrial relations, as it prolongs the period of the dispute. The use of faster and more efficient balloting methods, such as e-balloting and secure workplace balloting, could assist in the earlier resolution of disputes, as ballots and subsequent negotiations would take place more quickly.

Just as the arguments for the introduction of e-balloting and secure workplace balloting for trade unions grow stronger by the day, the Tories’ unsubstantiated opposition on the grounds of safety looks weaker and weaker. I do not wish to pre-empt the Minister—although I undoubtedly will—but I am sure he will repeat his line that he is not against e-balloting in principle, but that the Speaker’s Commission provides evidence of concerns about safety. The commission’s report did raise concerns over security, but also said that these could and should be overcome and that online voting should be an option for all electors by 2020—that is, for the general election, let alone trade union ballots. Furthermore, the commission reported on evidence from the Open Rights Group, which argues that electronic balloting is less safe than voting via the ballot box in general or local elections.

The Minister sought to rely on that evidence when he appeared before the Committee to argue that trade union ballots cannot be run safely online. However, the ORG’s evidence was based on a comparison between general election voting in polling stations and online voting. The ORG made no comment on the safety and security of wider forms of online voting. The Minister said in his evidence to the Committee:

“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”.––[Official Report, Trade Union Public Bill Committee, 15 October 2015; c. 166, Q413.]

I find that rather staggering, because it is not clear to me why trade unions are the only organisations in the UK that are required by legislation to use postal-only ballots for elections and ballots. This suggests that the Government are more interested in interfering in the democratic decision making of trade unions, rather than being genuinely concerned about the safety of balloting systems.

[Ian Mearns]

My hon. Friend referred earlier to the fact that the Conservative candidate for Mayor of London was elected using a form of e-balloting. I wonder about the double-standard put forward by the governing party. They say it is perfectly legitimate for electronic voting to be used for one of the most important political positions in the country, but not for a potentially small industrial dispute in a remote part of the United Kingdom.

[Stephen Doughty]

My hon. Friend makes a very important point. If the Government were genuinely concerned about the levels of electronically based elections in the private sector, they would legislate to require all bodies to use postal-only ballots, and they would re-run the election for the candidate for Mayor of London using a postal-only ballot.

I simply cannot understand the Government’s argument, and nor can the public. On the one hand, the Government say that they want to increase participation, that we need to ensure that everybody has their say, and that strikes and actions must not take place without everybody’s consent. But they will not extend the most simple modern methods to allow people to participate in a democratic process, which is their right as established in many conventions—indeed, in this country’s historic laws and principles. The Government seek to deny unions the right to exercise that franchise. It simply does not make sense.

It certainly does not make sense, given that secure workplace balloting is already used, as I have described. Why can it not be extended to industrial action ballots and other elections that unions undertake? It is certainly bizarre, given that I can list 40 or 50 different organisations that use e-balloting. The Electoral Reform Society and others have produced plenty of evidence that such methods can be used securely, safely and effectively. They meet all the tests that any Government, employer or union would want to apply to ensure they are safe and secure on both sides. The Government’s arguments and their refusal to engage do not make sense. I hope, given that the Minister said that he will reflect on other parts of the Bill with the best of intentions, that the Government will look at this issue again. I hope they look favourably on our new clauses and commit to supporting them, or at the very least pledge to introduce Government amendments mirroring ours on Report.

I turn briefly to the specifics of the amendments and new clauses. Amendment 39, which I have not touched on in detail so far, relates to the section on political funding. It is absurd and ludicrous that the Bill requires individuals or their authorised agents to deliver opt-in, renewal or withdrawal notices to the trade union head office or branch office personally or by post. The amendment would enable trade union members to renew their opt-in via email or online. Most trade unions are concerned that they will have just three months—we will come on to that issue—to sign members up to their political funds after the Bill comes into force. If members do not opt in within three months, they will no longer be considered valid contributors. That is unworkable and unreasonable, and in practice it will mean that many trade union members who want to pay into the union political fund will be prevented from doing so.

The provisions also fail to recognise that trade unions will be required to revise their rule book to comply. Many trade unions hold their rule-making conference once a year, every two years or, in some cases, every five years. It is therefore unreasonable for the Government to expect trade unions with a political fund to convene a special rule-making conference within three months to comply with the legislation. For many trade unions, it would be simply impossible to book venues and make the relevant logistical arrangements in time. The costs are likely to be astronomical, representatives might not be able to secure the time off to attend the conference and there might be problems with quorums and so on. Again, they will not be able to use electronic methods. People will have to hand in a hand-written notice to a head office or a branch office. Again, it reveals the Government’s true intent. If the Minister does not want the public and trade union members to believe that that is the intent behind the Bill, why does he not go some way towards a compromise and provide methods to encourage the maximum participation, both for opting in to political funds and for ballots?

I have detailed the new clauses. Briefly, for the Committee’s benefit, new clause 1 would permit trade unions to decide to use electronic voting for industrial action ballots. For example, union members would be able to vote online, on smartphones or via secure phone lines. They would also be able to vote electronically in workplaces using secure laptops or electronic booths. New clause 2 would permit unions to use electronic voting in other statutory elections and ballots, including the election of general secretaries, political fund ballots and ballots on mergers. New clauses 4 and 8 would permit trade unions to decide to use similar electronic means to those in new clause 1, or workplace ballots, similar to those used in statutory recognition ballots, for industrial action ballots. In workplace ballots, union members would be able to vote using paper ballot papers and secure ballot boxes in a secure location at the place of work. New clauses 5 and 6 would permit trade unions to use electronic and workplace ballots for all other statutory elections and ballots.

This comprehensive set of amendments and new clauses is about bringing trade unions into the modern age, as the Government say they want to do, and being able to use modern methods that are already used elsewhere and are seen to be successful. Frankly, I cannot see any reason why the Government would wish to oppose them.

[John Howell (Henley) (Con)]

I accept that electronic voting is gaining widespread political support, but I disagree with the hon. Gentleman’s interpretation of the evidence that was put to the Speaker’s Commission on Digital Democracy, particularly the evidence from the Open Rights Group. The Guardian commented:

“The chief fear of many is that…electronic voting would make electoral fraud easier, not harder. In the worst-case scenario, rather than forging ballots”—

an individual—

“could simply flip a switch and win the election with no trail in sight.”

The executive director of the Open Rights Group, Jim Killock, said:

“This is a very hard problem to solve and so far nobody has managed it. Accountability in most software systems means a clear audit trail of who did what, which of course would violate the basic question of secrecy.”

Regardless of that, the other part of that argument is that the system has to be made so secure and the voting equipment has to be trusted to such an extent that accountability is open to doubt.

[Stephen Doughty]

On the basis of that argument, I have to ask whether the hon. Gentleman considers the election of his colleague, the hon. Member for Richmond Park (Zac Goldsmith), as the Conservative candidate for Mayor of London to be unsound in some way.

[John Howell]

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

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

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

--- Later in debate ---

[John Howell]

I think there is a great deal of similarity between using electronic means for an election and for this sort of statutory balloting. The thing that most concerns me is that, as in the words of the Open Rights Group that I just quoted:

“This is a very hard problem to solve and so far nobody has managed it.”

The question is how we deal with the problems of security and particularly of accountability.

[Stephen Doughty]

I think that it is important to test this point. The hon. Gentleman is referring to decisions that have statutory implications, are regulated and so on, but these methods are also used by major financial institutions. For example, the Nationwide Building Society, the Yorkshire Building Society, J.P. Morgan and others—

[Seema Kennedy (South Ribble) (Con)]

rose—

[The Chair]

Order. You cannot intervene on an intervention.

[Stephen Doughty]

At their annual general meetings, which are often taking very serious and significant decisions, which are bound by the financial law set out by this House, those organisations are using these systems, so what is the problem? Why is this the only part of our democracy that is not able to use them?

[John Howell]

I think that a number of hon. Members want to intervene. First, does my hon. Friend the Member for South Ribble want to intervene on me, as she could not intervene on the intervener?

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[Nick Boles]

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

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

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

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

[Stephen Doughty]

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

[Nick Boles]

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

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

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

[Stephen Doughty]

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

[Chris Stephens]

rose—

[Stephen Doughty]

I will give way, but I do not want to take too many interventions.

[Chris Stephens]

I am grateful to the shadow Minister for giving way. Can he confirm that those organisations are doing that because they believe the turnout will be a lot higher if alternative methods of voting are used?

[Stephen Doughty]

I believe that is the case, because those organisations have the evidence for it. It was submitted in written evidence by a number of unions and in evidence to the consultations run by BIS. They made clear their experience of using those types of balloting methods and said that they feel secure with them. They also said that there is a very low incidence of claims of fraud or problems. As I said, none of the claims that were made—I think there have been only seven—was upheld.

[Ian Mearns]

Does my hon. Friend agree that the different forms of voting in a particular ballot are not mutually exclusive? Members of a union, prior to a ballot taking place, could easily inform the union about the way they would prefer to participate in the ballot. If, because of the reasons outlined by the Minister, they do not want to be seen to be voting in person in a secure workplace ballot, they would have the right to vote by post if they wished to do so.

[Stephen Doughty]

That is indeed the case. That is the very purpose of new clause 6, which would allow for so-called combination ballots. One, all or a combination of the different methods available could be used, depending on the practical circumstances of the organisation or union. My hon. Friend the Member for Sunderland Central set out clearly the different structures of the ways in which unions operate and the methods they might choose. Of course, employers are set up in many different ways. There are dispersed workforces and ones with a couple of out facilities. We need as many methods as possible to ensure the maximum participation.

This comes back to a very simple issue. If the Government are serious about increasing participation, democracy and the legitimacy of union engagement and decision making in society, most Committee members—and, I hope, the Minister, too—in their heart of hearts know, whatever they feel about the trade union movement, the Labour party and these issues in general, that this is not right. It will essentially prevent people in this country—we heard from the TUC that one in 10 people in this country may want to participate in such decision-making processes—from exercising their rights in the most sensible way possible. It will deny them the right to take part in decision making, and that cannot be right, given this House’s history of extending suffrage and the methods of voting, especially in this year, the 800th anniversary of Magna Carta. I do not say that lightly: this is simply not right, and the Government are refusing to contemplate these matters.

I accept that there are arguments about how to make these methods secure—nobody is denying that—but we have examples of where they are used already. They are used in many other parts of public life. They are used, for example, by law firms. King & Wood Mallesons holds online votes for members’ resolutions, board directorships, adoption processes and partners. I am sure it would want to ensure that the people taking part in those votes could not be identified either, yet it managed to use these methods. Pinsent Masons is currently holding an online election for its managing partner. Chevron had an online directors’ election for its May 2015 pension plan decision. Those are all serious, regulated matters, with serious implications if things are done incorrectly or if there is fraud or a lack of security.

--- Later in debate ---

[Nick Boles]

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

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

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

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

[Stephen Doughty]

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

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

[Ian Mearns]

My hon. Friend is absolutely right. Even after two years, the 5p plastic bag tax is not being operated correctly by many, many places of sale.

[Stephen Doughty]

My hon. Friend makes a good point. The Minister says that 10 years is far too extreme, but amendment 40 is a probing amendment. Will he explain the reasoning, so that if we return to this issue, we can understand the Government’s full intent? What justification is there for a three-month transitional period? What other example is there of such major legislation allowing only three months to transition? Again, this looks like a deliberate attempt to frustrate legitimate adherence to the law by trade unions and other organisations. This is just another pile on top of a whole bunch of sinister regulations. The Government would not dream of doing this to any other part of business or to anyone else, claiming as they do to be the party of deregulation. There is one standard for the trade unions and one part of our civil society and another standard for others, including the Government and their own provisions—we have heard about plastic bags. I would like the Minister to explain that point, to which we will undoubtedly return at a later stage.

Amendment 92 agreed to.

Amendment made: 93, in clause 10, page 7, line 3, leave out subsection (4) and insert—

‘(4) During the period of three months beginning with the commencement date (“the transitional period”), the member is treated as a contributor to the fund for the purposes of the 1992 Act (as amended by this Act).

This is subject to subsection (5).

(5) If during the first two months of the transitional period the member gives an exemption notice as mentioned in section 84(1) of the 1992 Act, as it had effect immediately before the commencement date, subsection (4) ceases to apply to the member at the end of the period of one month beginning with the day on which the notice is given.”—(Nick Boles.)

The existing transitional provision, in subsection (4) of clause 10, treats union members who on the commencement date had not opted out of contributing as having opted in under the new provisions, for a period of three months. The amendment enables such people to opt out of contributing during this period.

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

--- Later in debate ---

Publication requirements

[Stephen Doughty]

I beg to move amendment 44, in clause 11, page 7, line 16, leave out “£2,000” and insert “£100,000”.

The amendment would raise the threshold for providing details of items of political expenditure in a union’s annual return to the Certification Officer from £2,000 to £100,000.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 45, in clause 11, page 7, leave out lines 18 to 24 and insert

“shall report the overall amount of expenditure in a year to any one organisation.”

The amendment would require a union’s annual return on political expenditure to the Certification Officer to report the overall amount of expenditure.

Amendment 98, in clause 11, page 7, line 25, leave out sub-paragraph (3).

[Stephen Doughty]

I do not intend to detain the Committee long on this clause, but it concerns an important matter. Despite what the Minister might think, trade unions play a vital role in a dynamic British economy and are an integral stitch in the treasured patchwork of society. Whether they are standing up for workers’ jobs in Redcar or trying to save British steel making, trade unions are more important now than ever before. They play a pivotal role right across the UK in the work of organisations such as HOPE not hate, which has done incredible work in my constituency on electoral registration and tackling extremism. Clause 11 seeks to interfere with and limit that role.

One might conclude that clause 11 on its own sounds reasonable and simply ensures increased transparency. However, alongside the changes the Government made in the previous Parliament in the Transparency of Lobbying, Non-party Campaigning and Trade Union Administration Act 2014—we call it the gagging Act—it forms part of a wider attack on our democracy. The 2014 Act has hit charities and campaigners hard, limiting their right to fight for important causes while allowing professional lobbyists and their funding to escape scrutiny. Expert organisations that have a vital contribution to make have been left unsure whether they are allowed to speak out, use funds and so on. The Government should not be afraid of criticism or lively debate. As I have said before, the Trade Union Bill is simply a dodgy sequel to the gagging Act.

Clause 11 provides the certification officer with new, wide-ranging powers to investigate how unions’ political funds are used and where the money goes. If the clause is accepted, a union will be required as part of its annual return to report to the certification officer on how all the expenditure from its political fund has been used, who it was paid to and for what purpose. The categories of spending include contributions to or the payment of expenses for a political party, provision of services or property for use by or on behalf of any political party, funding of a ballot by a union in connection with election to political office, the funding of conferences or meetings by or on behalf of a political party and party political electioneering material or products.

This clause, alongside so many other measures, will simply create significant new administrative burdens for trade unions, wrapping them further up in the blue tape that we have mentioned many times previously. It will also enable the Government to monitor how trade unions spend their resources and will invite additional public scrutiny, as political fund expenditure is likely to be published on the certification officer’s website alongside a union’s annual membership return. Therefore, will the rules apply to not only unions, but employers associations?

I want the Minister to explain the clause’s purpose, because much of the information is already out there in the public domain. I have referred to my entry in the Register of Members’ Financial Interests before, and it is clear where donations have been made. Trade union money is extremely transparent. The Labour party reports on it and the Electoral Commission looks at it. To comply with the other Acts that I have referred to, trade unions often make what they are spending very clear. USDAW’s “Freedom from Fear” campaign was captured by that last year because it was in the long period running up to a general election. I want to understand the real purpose behind the clause.

Let me turn to amendment 44. The new requirement to report to the certification officer on political fund expenditure will apply to unions spending more than £2,000 a year from a political fund. Clause 11, which will insert new section 32ZB(3) in the 1992 Act, will permit the Government to increase, but not to reduce, the threshold through regulations. Again, as with so many other examples in the Bill, we have not seen those regulations. Amendment 44 would increase the minimum threshold over which unions are required to report on items of political expenditure from £2,000 to £100,000. It is about reasonableness and balance. It is about allowing as much scrutiny as possible, but not overly intrusively interfering in the operation of these organisations.

--- Later in debate ---

[Nick Boles]

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

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

[Stephen Doughty]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

--- Later in debate ---

[Stephen Doughty]

The Government have an air of greater relaxation now that they realise they have their full team here. I will comment not just on my amendments in the group, but also on those of the SNP and on clause 12 more generally.

The proposals in clause 12 have the fingerprints of Lord Maude of Horsham all over them, because they mirror the measures implemented in Whitehall Departments by the Cabinet Office in 2012-13. Departments were expected to carry out more detailed monitoring and reporting of facility time, to report quarterly to the Cabinet Office, and to publish annually how much was spent on facility time. The Cabinet Office issued a guide figure for spending on facility time; in the first year, it was 0.1% of the pay bill. That included all facility time, time for health and safety representatives, and time for union learning representatives, who I believe we heard elsewhere had been funded, in fact, by the Government.

I will endeavour not to touch too much upon the arguments that will be made in response to Government new clause 11, which I know we will come to in due course, regarding check-off. But in tabling new clause 12, the Government are seeking to go much, much further than the measures they have already introduced, as it would provide the Government with the power to require all public sector employers—hospitals, schools and many more—to publish information each year on the amount of funds used for trade union facilities. This information would include the number of union officials employed, or the number of union officials within specified categories, for example shop stewards, health and safety representatives and union learning representatives; the amount of money that the employer spends on facility time, including what percentage of the total pay bill it constitutes; the amount of facility time spent on specific duties or activities, including health and safety, and accompanying members in grievance and disciplinary hearings; and information relating to facilities provided by the employer in connection with facility time, for example office space and the use of phone lines.

It is important to remind the Committee—as the hon. Member for East Kilbride, Strathaven and Lesmahagow has just done—what facility time is and why it is so vital. Facility time is the amount of time that workplace representatives, shop stewards, learning representatives, and health and safety representatives can spend representing their members in the public sector. These are people who do hard graft on the front line to protect their members’ interests effectively, for example by raising safety standards or promoting access to skills and training, and, of course, accompanying individuals to grievance and disciplinary hearings, which is crucial.

The benefits of facility time are clear, and not just for the employees but for the employers. I have experienced that myself. I worked at one point for Oxfam, which had a trade union representative who was able to use facility time, for example, to work with me—I was a manager at the time—in dealing with redundancy processes and other matters, to ensure that they were carried out to the benefit of both the employer and the employees, and so that everybody was satisfied.

Workplaces that have good facility time are likely to have better family-friendly policies and more effective equality policies, and indeed they are also likely to be safer workplaces. These workplaces also had lower voluntary exit rates, which led to an estimated saving in recruitment costs for employers of between £22 million and £43 million per annum. Negotiations between employers and unions can also facilitate innovation and change in furtherance of mutual objectives, and trade unions can also play a positive role in promoting skills, upskilling and training in workplaces, which I am sure the Government would wish to see increasing.

Also, where organisations face difficult economic conditions, or indeed the challenges that we face in the public sector with the type of changes and cuts that the Government have brought in, union representatives can develop fair processes for managing redundancies and restructuring. Clearly, there have been many examples of that in both the public sector and the private sector, particularly since the economic crisis of 2008. Constructive negotiations have taken place with a view to saving jobs and retaining skilled employment.

[Ian Mearns]

Another role that trade union officials can play is a welfare role. Many good employers are very good at looking after the welfare of their employees, but there are occasions when an individual will want to keep a welfare concern confidential from their employer, because they are concerned that the employer’s esteem for them could be damaged by it. In those circumstances, the care that the union can provide, in terms of looking after the welfare of the individual member, can be good for the employee and union member, and also good in the long term for the employer.

[Stephen Doughty]

My hon. Friend makes a very important point. I believe that business, the public sector and society are mutually dependent—I am sure my hon. Friends agree with that—and that all succeed when individual workers succeed and feel supported, and vice versa. The MacLeod report, which was commissioned by the Department for Business, Innovation and Skills and endorsed by the Prime Minister, suggested that managers should listen to concerns expressed by employees and their representatives, and concluded that addressing those concerns would increase levels of employee engagement, thereby helping to deliver sustainable economic growth—and, I am sure, efficiencies in the public sector.

Similarly, research by ACAS found that trade union representatives play an important role in improving workforce engagement and morale, by helping ensure that employees’ concerns about their working conditions are listened to and addressed. In turn, that can improve productivity, service quality and ultimately—a crucial point for the Government—the financial performance of organisations. All of those mutual benefits and many more could be at risk if the Government’s proposals on facility time are implemented in their current form.

I am pleased that other Governments across the UK have a different view from that of the Westminster Government. As we heard, the Welsh Government realise the value of such benefits. Their relations with trade unions are based much more on a partnership approach—the Scottish Government take a similar approach—rather than being provocateurs, which seems to be the position that some of the Minister’s colleagues have comfortably slipped into.

The proposed restrictions on facility time could damage constructive employment relations and undermine effective joint working between employers and unions in public services. The proposals also risk damaging the devolution settlement—we had a lengthy debate on that the other day—and could be subject to serious legal challenge. They are not a model for modern industrial relations, which is why we will oppose the clause.

I have a great deal of sympathy with the amendments tabled by the SNP, and if they are pressed to a Division they will certainly get our support. The amendments represent a more useful and effective way of looking at facility time, and we agree with many of the concerns the SNP has raised.

Amendment 46 would mean that public sector employers would be required to publish only the number of union officials employed and the total amount invested in facility time, rather than more detailed breakdowns of those figures. Amendment 74 would require public sector employers to provide the cost savings of facility time. If the Government proceed with further punitive measures, it is important that public sector employers should explain the cost savings that are driven by facility time so that we have full transparency.

Amendment 50 concerns the process by which any regulations are agreed. We need to ensure maximum scrutiny of any regulations on this matter. We have already seen the Government attempt to sneak in all sorts of things through the back door with the Bill: they have not published regulations or brought out the responses to consultations, which should have happened before we were in Committee. Amendment 50 would ensure that future regulations requiring public sector employers to publish information on facility time would have to be debated in both Houses. The Government currently plan to use the negative procedure for such regulations, so there would be no debate unless the regulations were prayed against. Given the rushed nature of the consultation, and of parts of the current scrutiny process, I am sure many people outside this place would agree that any future regulations deserve much more adequate scrutiny so that we can get to the bottom of what the Government are trying to do.

I look forward to hearing the Minister’s comments on the clause and on the amendments we have tabled.

[Jo Stevens]

The proposals on facility time illustrate the lack of understanding we have seen from the Government about how trade unions operate and the benefits they deliver, not just for their members but for employers. There has been precious little evidence given for the attack on facility time in the Bill, as we saw when unevidenced assertions were presented by the witness from the TaxPayers Alliance last week.

I will talk about two aspects relating to the amendments tabled by my hon. Friend. My first point is a general one about facility time, in the health service in particular. In 2007, the then Department for Business, Enterprise and Regulatory Reform looked at the issue as a precursor to revising the ACAS code of practice on facility time for union reps. If the Minister had compiled a report such as that one before the Bill was drafted, he would have found that union reps make a significant contribution to increasing productivity, making their workplaces safer, reducing the costs of recruitment and helping business to become more responsive to change, by helping staff acquire new skills in addition to updating those they already have. That report showed tens of millions of pounds of savings to employers and the Exchequer by reducing the number of employment tribunal cases, although I will admit that the Government have done a pretty good job on that by introducing tribunal fees and pricing people out of access to justice. The report also showed the benefits to society worth hundreds of millions of pounds as a result of reducing working days lost due to workplace injury and work-related illness. Follow-up research by the TUC pointed to overall productivity gains worth between £4 billion and £12 billion to the UK economy.

More recent research carried out for the Royal College of Nursing by the University of Warwick and Cass Business School backed up the 2007 report. The analysis found that work carried out by trade union representatives in NHS organisations was estimated to save the health service at least £100 million a year. In times of such constrained public finances, facility time is estimated to save large teaching hospitals £1 million a year. The RCN is unequivocal that, aside from the financial cost of high staff turnover when the NHS is already struggling to recruit and retain enough staff, removing effective union representation could have,

“a significant impact on patient safety.”

Janet Davies of the RCN, who we heard from last week, went on to say:

“The health service can ill-afford further damage to staff morale, or to squander even more money on recruitment costs. The trade union bill is bad for staff, employers and most importantly it is bad for patients.”

The RCN is on the front line of service delivery and understands the practical impact the Bill would have. The Labour party is inclined to listen to it.

I want to briefly mention the health and safety representatives and the impact of the Bill on their valuable work. There is, of course, a legal duty on employers to give health and safety representatives as much paid time off as they need to undertake their duties. That is laid down in regulations and it is absolute. The regulations do not say that an employer can decide to restrict that time. If a representative needs it, they need it, and that will vary from week to week, but the Bill says that any public sector employer who has at least one health and safety representative will have to record and publish all the time taken and the facilities provided. That is bureaucratic and pointless, and will just mean that employers and union representatives will have to spend a significant amount of time on paperwork.

Even more dangerous is the proposal to allow Ministers to restrict the rights to time off given to union health and safety representatives by amending the Health and Safety at Work etc. Act 1974. All they have to do is introduce new regulations. The proposal is extremely vindictive and underhand, sneaking in the right to do this, by statutory instrument, into a much wider Bill. At no time have the Government given any justification for that proposal.

Union health and safety reps save hundreds of lives and prevent tens of thousands of injuries and illnesses to working people. Workplaces with union health and safety reps and joint health and safety committees have half the serious injury rates of those without. Any reasonable employer welcomes the presence of health and safety representatives, including almost all those in the public sector. That is why this proposal will not save money or remove bureaucracy—nor, more importantly, will it improve safety in workplaces. It has the potential to do the opposite.

Before coming to this House, I represented many people who had suffered the death of a family member in workplaces without health and safety reps, I ask the Minister, please, to seriously consider the proposal.

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[Nick Boles]

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

[Stephen Doughty]

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

[Nick Boles]

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

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

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

[Nick Boles]

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

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

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

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

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

[Stephen Doughty]

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

[Nick Boles]

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

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[Nick Boles]

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

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

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

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

[Stephen Doughty]

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

[Nick Boles]

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

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

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

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

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[The Chair]

Order. The House has now adjourned. I can go on all evening, but of course it is up to hon. Members, some of whom have very long journeys. You can speak for as long as you like, but it is up to you.

[Stephen Doughty]

Sir Edward, I do not intend to detain the Committee for very long at all. I hope we can come to a conclusion quickly. I am still intrigued by the cat that the Minister let slip out of the bag, which is that the Secretary of State for Health or perhaps the Secretary of State for Education might exercise the powers that we will discuss when we come to clause 13 to cap facility time. It would be helpful if the Minister wrote to the Committee before we debate clause 13 to indicate who will use the information contained in clause 12 and who will apply the powers in clause 13. The devolved Governments of the UK will take a keen interest in that, as will other members of the Committee. Will the Minister undertake to write to us to clarify that before we get to clause 13?

[The Chair]

I think the Minister is nodding. It is just that Hansard cannot see it.

[Stephen Doughty]

Excellent. I hope Hansard notes that the Minister nodded.

[Nick Boles]

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

[Stephen Doughty]

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

[The Chair]

Does the hon. Member for East Kilbride, Strathaven and Lesmahagow wish to sum up?

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[Chris Stephens]

Amendment 110 would remove learning representatives and health and safety representatives from the information requirement. We return to the debate about what the problem is. Is it a pressing issue that people are concerned about use of public money, or is it just pandering to the agenda of the Taxpayers’ Alliance? Again, we have outlined the benefits of learning representatives to other employees, not just trade union members, and of safety representatives to ensuring safety at work. That is a serious issue on which we have advanced by leaps and bounds. Our amendment is clear: learning reps and health and safety reps should be taken out of the requirement to publish information.

[Stephen Doughty]

I will speak to amendments 47, 100, 48 and 102. It is important to consider who is covered by clause 12 so that we understand the sorts of roles that are affected. We have already had a lengthy debate on this subject, but it is important that the Committee knows that, for example, the Fire Brigades Union trains highly qualified serious accident investigators, who work with fire authorities to investigate incidents in which, tragically, firefighters have been killed on duty, in order to identify and implement service improvements that can prevent future fatalities. I am sure both sides of the Committee would agree that that is an important function. The FBU is concerned that limits on facility time arising from clauses 12 and 13 could restrict, or even prevent, FBU representatives from ensuring that firefighters operate in a safe working environment—these clauses could endanger firefighters in the future and could mean that any safety-critical problems identified will be left unresolved.

We have just heard from the SNP about amendment 110, which would remove trade union learning and safety representatives from the definition to which facility time publication requirements will apply. Our amendments 47 and 48, in a similar vein, would remove health and safety representatives from the reporting requirements in relation to facility time.

As we have heard, trade union workplaces are safer workplaces, which is largely due to tens of thousands of union health and safety reps being trained to internationally recognised standards each year. Trade unions regularly raise safety concerns through health and safety committees and collective bargaining arrangements, which, fundamentally, leads to far fewer workplace accidents not only in professions such as the fire service, where obviously there is significant risk, but in many other workplaces too.

According to research commissioned by the Department of Trade and Industry—the forefather, or foremother, of the Department for Business, Innovation and Skills—in 2007, by reducing time lost to occupational injuries and work-related illnesses, union safety reps save taxpayers between £181 million and £578 million every year at 2004 prices. We have just had an argument on transparency, and the Minister said that we cannot estimate some of these things, but this is a clear example of where his own Department has estimated such things, following serious research, to be worth a significant amount of money. I am sure the sum is even higher today.

Amendment 100 would remove trade union representatives in disciplinary and grievance procedures from the definition of union officials for the purposes of the requirements in relation to facility time, which would mean that public sector employers are not required to report on the amount of time that union officials spend accompanying members in grievance and disciplinary hearings each year. Fundamentally, the amendment aims to highlight the vital role played by union workplace representatives in representing members in formal procedures in the workplace.

We have already heard a number of relevant examples. ACAS research in 2008 found that managers see union representatives undertaking such work as having a crucial and positive role in the informal process of dispute resolution. The research found that union representatives often provide an early warning of potential problems and are a channel of communication between managers and employees. They are also seen as helping to monitor members involved in disciplinary or grievance issues. Within formal hearings, most managers found that union representatives help to ensure that issues are explored in a consultative fashion and that fair decisions are reached. I have experience of such issues in the workplace, as I am sure other members of the Committee do, too. The ACAS research also found—this is crucial—that union representatives are able to manage the expectations of trade union members, which is useful in avoiding unnecessary confrontation, and that union representatives are generally perceived to be well trained and knowledgeable in legal and procedural issues.

I have already talked about amendments 47 and 48. Amendment 102, much like amendment 100, would remove trade union representatives in disciplinary and grievance procedures from the definition of union officials for the purposes of the requirements in relation to facility time, for the reasons that I have previously given. Those are important issues, and I will be interested to hear what the Minister has to say about them.

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Division 25

Ayes: 7

---

Labour: 5
Scottish National Party: 2

Noes: 9

---

Conservative: 9

[Stephen Doughty]

I beg to move amendment 103, in clause 12, page 9, line 3, leave out subsection (9).

[The Chair]

With this it will be convenient to discuss the following:

Amendment 49, in clause 12, page 9, line 5, leave out “partly” and insert “mainly”

Amendment 99, in clause 12, page 9, line 20, at end insert—

‘(13) None of the provisions of this section shall apply to facility time of the employees of an individual, a company, a partnership or any other body save a public authority”

[Stephen Doughty]

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

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

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

[Nick Boles]

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

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

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

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

[Stephen Doughty]

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

[Nick Boles]

I am happy to confirm it.

[Stephen Doughty]

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

Amendment, by leave, withdrawn.

[The Chair]

We now come to amendment 84 to clause 12, which has already been debated.

Amendment proposed: 84, in clause 12, page 9, line 20, at end insert—

“(13) The provisions in this section shall only apply with the consent of the Scottish Government, Welsh Government, Northern Ireland Executive, the Mayor of London and Local Authorities in England in their areas of responsibility.”—(Chris Stephens.)

Trade Union Bill (Seventh sitting)

Stephen Doughty Excerpts

Thursday 22nd October 2015 Public Bill Committees

[The Chair]

Before we begin, would everyone ensure that all electronic devices are switched off or set to silent mode? That goes for members of the public as well. I point out to both sides of the Committee that we are only on clause 8. We have 22 clauses and a heck of a lot of business to get through. There are a lot of Government and Opposition amendments to deal with, and we have four sittings of the Committee left.

I say to the Opposition that this is an opportunity for them to highlight the key components of the Bill, get the message out there and seek change. I say to the Government that this is an open-ended Committee stage, and if we do not advance enough, an application may be made for an extension of Committee time. I would not like to see that happen. We need to get to the point and have less repetition, although we know it is warranted by both sides of the argument. It is essential that we speed up a little bit if we are to deal with the issues at hand, because I know there is some quite big stuff coming at the end of our considerations. Without further ado, we will continue line-by-line consideration.

Clause 8

Expiry of mandate for industrial action four months after date of ballot

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

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

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

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

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

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

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

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

[The Minister for Skills (Nick Boles)]

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

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

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

[Stephen Doughty]

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

Amendment, by leave, withdrawn.

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

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Union supervision of picketing

[Stephen Doughty]

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

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

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

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

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

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

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

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

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

[Nick Boles]

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

[The Chair]

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

[Stephen Doughty]

Thank you, Sir Alan, for that clarification. Of course, if the Minister did not want me to stray on to that type of territory, it would have been helpful if the Government had published their responses to the consultations. They undertook many consultations over the summer, but we have not seen the responses to them. We have not seen secondary legislation. We have not had a lot of the clarity that is required. We are being asked to discuss the Bill and its implications largely in the dark. There were whispers from some in the media that the Government planned to withdraw some of these changes. So that we do not discuss things unnecessarily, it would be helpful if the Minister clarified those issues in his remarks.

As I have said before, what question are these proposals trying to answer? Picketing activities are already heavily regulated in the UK by an extensive range of civil and criminal laws. Trade unions must comply with the requirements for peaceful pickets in section 220 of the Trade Union and Labour Relations (Consolidation) Act 1992 and act in accordance with the accompanying code of practice. Unions and their members are also—this is very important—subject to a range of laws on public order, highways, protection from harassment, criminal damage and so on. It is a criminal offence already for pickets to use violence or intimidate individuals or their families, to follow individuals from place to place, to hide work tools and to watch and beset an individual. Those are certainly not activities that I or any Opposition Member would endorse, but they are already covered under the law.

The view from the police representatives—from the Police Federation and from the National Police Chiefs’ Council—during the oral evidence sessions was clear. They do not see a need for these extra powers and, if the Government introduce them, that carries a significant risk of stretching their limited resources further still.

The Government, just as the London Fire Brigade representative did in his submission, have sought to rely on evidence gathered during the recent Carr review, even though the Government’s own impact assessment, on page 5, confirmed that

“this evidence could not be substantiated.”

Further to that, Carr decided that he was unable to make evidence-based proposals or recommendations for change as originally instructed because of

“the increasingly political environment within which”

he

“was operating coupled with the lack of a significant enough body of evidence to support any recommendations for change.”

The Department for Business, Innovation and Skills consultation document acknowledged that most pickets conform to the guidance set out in the existing code of practice. The RPC’s recent review of the Government’s impact assessment found that

“there is little evidence presented that there will be any significant benefits arising from this proposal”.

Leading civil liberties groups, which I have already mentioned, recently issued a joint statement criticising the Government’s proposals. They stated:

“The government’s plans to significantly restrict trade union rights—set out in the Trade Union Bill—represent a major attack on civil liberties in the UK…Taken together the unprecedented measures…would hamper people’s basic rights to protest and shift even more power from the employee to the employer. It is hard to see the aim of this bill as anything but seeking to undermine the rights of all working people.”

At a time when, in the words of my hon. Friend the Member for Birmingham, Erdington (Jack Dromey), the thin blue line is being stretched thinner and thinner, the Government’s proposals risk diverting scarce police resources from tackling serious crime. I deal with, for example, many issues relating to extremism. I have had examples of that in my constituency. We have had lengthy discussions with the Government about the policing of the activities of extremists on social media and so on. That is where police efforts should be directed; they should not be directed towards matters such as this, which are already covered under existing provisions. As I said, the existing law provides for the police to crack down on illegality and breaches of the peace, all the while protecting the rights of trade union members to engage in peaceful picketing at the entrance to their workplaces. I fear that the Government are seeking to stack the deck against those who want to take part in peaceful, lawful pickets, by moving the goalposts, potentially placing those people outside the law. That, fundamentally, is why we will oppose clause 9.

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[Nick Boles]

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

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

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

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

[Stephen Doughty]

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

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

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

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

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

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Chris Stephens]

I beg to move amendment 104, in clause 9, page 5, leave out lines 1 to 13 and insert—

‘(3) A picket supervisor is required to show a constable a letter of authorisation only if

(a) the constable provides documentary evidence that he or she is a constable;

(b) the constable provides his or her name, and the name of the police station to which he or she is attached; and

(c) the constable explains the reasons for the request to see the letter of authorisation.

(4) If a picket supervisor complies with a constable’s request to produce a letter of authorisation, the police officer shall provide the picket supervisor with a written record of the request, the reasons for it, and an acknowledgment that the request was complied with.

(5) If a picket supervisor fails to comply with a constable’s request to produce a letter of authorisation, the police officer shall provide the picket supervisor with a written record of the request, the reasons for it, and an acknowledgment that the request was not complied with.

(6) Information about the identity of a picket supervisor and any information relating to the production of a letter of authorisation shall be retained by the police only for the purposes of giving evidence in legal proceedings directly related to the picketing to which it is connected.

(7) For the avoidance of doubt neither a member of the public nor an employer shall be entitled to request a picket supervisor to produce a letter of authorisation.”.

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We believe that our amendment would improve the clause. We therefore ask the Government to respond to it. I look forward to the Minister’s feedback.

[Stephen Doughty]

The hon. Gentleman is doing an excellent job as a member of the Night’s Watch, because clearly winter is coming for the trade union movement; that is very much what the Bill is about. I support many of the arguments that he has advanced about the implications in relation to policing around pickets. Were he to press amendment 104 to a vote, he would gain our support, because as he has said, unions are more than willing, as things stand, to co-operate with the police during picketing activities, but if the clause is passed as drafted, there will be many vulnerabilities—for example, in relation to whether people are able to show the letter of authorisation; they may have misplaced or lost it. These are very significant legal changes, and the amendment is straightforward. Essentially, it is asking police officers to follow, when asking to see a letter of authorisation, basic formal processes that simply mirror the Police and Criminal Evidence Act guidelines, so it would certainly enjoy our support.

Let me speak to our amendments 28 and 29. Amendment 28 would require trade unions to inform the chief constable of the identity of picket officers, rather than, as the Bill states, the police more generally. That is because it is unclear at the moment whom the trade union would be expected to inform under the Bill and it is excessive and unjustified that trade unions should be legally required to inform the police more generally of the picket supervisor’s name and contact details, which could deter responsible individuals who might otherwise have been willing from volunteering to co-ordinate pickets.

Worryingly, there could be risks for the police in being expected to compile and retain information about trade union activists. That brings into consideration the concerns expressed about blacklisting. It was important that we heard what the police representatives had to say. The police do not want to be put in the middle of this. They do not want to be in the invidious position of being expected to enforce and interfere in this way as an arm of the state when their role is to police by consent and act in a neutral way to ensure that all the individuals’ rights are respected. I certainly believe that the clause would result in excessive monitoring of union activities and is likely to breach trade union members’ rights to privacy as protected by article 8 of the European convention on human rights.

Those are not idle concerns. They have been resoundingly explored, particularly by UCATT in the construction sector, but also by others, who have shown what has happened in the past in relation to blacklisting. I would therefore like to understand from the Minister when he responds to the amendments why the Bill is drafted such that it has this very general definition of “the police”. Does he not accept that there are serious implications not only for the police but for those attempting to comply with the law if it remains in that general state?

Amendment 29 would remove the requirement on unions or the picket supervisor to inform the police of where the picketing will be taking place. The reason for that is not that we do not believe that people should know where picketing is going to take place, but because the 1992 Act already provides that picketing must take place

“at or near the place of work”.

That is a pretty specific definition; it is pretty clear. And why would pickets want to be occupying a place not outside the workplace where the dispute is taking place anyway? I believe that the additional requirement is unnecessary and there is a risk that unscrupulous employers will mount legal challenges if the trade union does not provide a very specific, accurate location or if the picket has to move a short distance. I can foresee that if a picket had to move from one location to another because of inclement weather, or to ensure access along a road or so on—the picket is trying to be reasonable, comply and do things sensibly—an employer acting in a vexatious manner might mount an injunction or challenge because the exact location was not specified as required in the Bill. I hope that the Minister will comment on that.

[Ian Mearns]

The Minister said in his intervention that many of the suggestions in the consultation do not appear in the Bill, but does my hon. Friend share my concern that, even so, they could come forward subsequently as regulations?

[Stephen Doughty]

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

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

[Nick Boles]

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

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

The code goes on to say:

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

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

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Division 18

Ayes: 7

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Labour: 5
Scottish National Party: 2

Noes: 9

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Conservative: 9

[Stephen Doughty]

I beg to move amendment 27, in clause 9, page 5, and line 2, leave out from “union” to the end of line 3.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 30, in clause 9, page 5, line 11, leave out subsection (6).

Amendment 31, in clause 9, page 5, line 14, leave out subsection (7) and insert—

‘(7) A picket supervisor must take reasonable steps to be contactable by the union and the police, and be able to attend in person given reasonable notice.”.

Amendment 32, in clause 9, page 5, line 14, leave out subsection (7).

Amendment 33, in clause 9, page 5, line 18, leave out subsection (8).

The amendment would remove the requirement for the picket supervisor to wear identification.

[Stephen Doughty]

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

[Nick Boles]

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

[Stephen Doughty]

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

[Chris Stephens]

I assume the Minister believes that emails in relation to picketing will be safe and secure.

[Stephen Doughty]

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

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

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

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

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

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

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

[Nick Boles]

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

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

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

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

[Nick Boles]

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

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

“While the picketing is taking place”.

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

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

[Stephen Doughty]

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

[Nick Boles]

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

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

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

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[Nick Boles]

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

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

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

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

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

[Stephen Doughty]

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

[Nick Boles]

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

[Stephen Doughty]

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

Amendment, by leave, withdrawn.

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

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Union’s annual return to include details of political expenditure

[Stephen Doughty]

I beg to move amendment 34, in clause 10, page 5, line 39, leave out

“has expired under subsection (2) or”.

[The Chair]

With this it will be convenient to discuss amendment 35, in clause 10, page 5, line 43, leave out from “unless” to the end of line 5 on page 6 and insert “it has been renewed”.

The amendment would define an opt-in notice as expired if on its expiry date it had not been renewed.

[Stephen Doughty]

We are starting to make some progress through some meaty issues. Clause 10 deals with the Government’s extensive proposals around political funding and how unions operate. We discussed such matters at length on Second Reading. We heard significant evidence from the Trade Union and Labour Party Liaison Organisation and from several unions that contribute to and maintain political funds. Although there was some japery from Government Members during that evidence session, it is important to understand the historical significance of the Government’s proposals, which go well beyond what even previous Conservative Administrations have considered and well beyond the bounds of cross-party consensus on political funding. The existing legislation governing trade unions that want to contribute to political parties or engage in certain political activities is clear, rigid and tough, and rightly so. The Opposition would not want it any other way and neither would the trade unions or the trade union members with whom I have spoken or who have given evidence.

As defined by section 72 of the 1992 Act, a trade union wishing to undertake such activities must establish a political fund. Before doing so, trade unions are legally required to ballot their members to ask, through a political fund resolution, whether they agree to the union maintaining a political fund. Trade unions are also required to ballot their members every 10 years to determine whether the trade union should retain the political fund. Union members currently have the right to opt out from their subscriptions being used for political fund purposes. Let us be clear that that relates not only to union subscriptions or affiliations to the Labour party, but to all the activities covered by political funds. Members can opt out at any time. It is important that the Committee understands that, because the idea that unions are somehow giving this money away with members having no democratic role is simply not the case.

The Government’s proposals in clause 10, however, replace that arrangement with a new requirement on union members to opt in every five years if they agree to their subscriptions being partly used to fund political parties or, as could be encompassed by the Bill, party political campaigns. Union members will retain the right to opt out from paying into the political fund at any point.

The Minister said earlier that I was potentially pre-empting comments that he was going to make, and I might do so again now. He might try to dress up the clause as an attempt to bring things into line with the situation in Northern Ireland, but it is important for the Committee to understand that it goes beyond the current practice there, which requires union members to agree to paying into the political fund only once. They are not required to renew their opt-in.

The Minister might also try to argue that the clause is about levelling the playing field with the duties that apply to companies that make political donations, but, again, it goes well beyond that. Part 14 of the Companies Act 2006 requires companies to get the authorisation of a shareholder resolution before making political donations of £5,000 or more. However, shareholders do not have a right to opt out of company political expenditure, and nor is there an opting-in arrangement.

At the risk of sounding like a broken record, I ask again: what is the Government’s real intention? Committee members should be left in no doubt that the purpose of requiring trade union members to opt in to political funds as required by the clause is simply a nakedly partisan attack aimed at damaging the finances of the Labour party. Such a move is designed to ensure the inevitable by gifting the Conservative party an ever greater financial advantage than is already the case.

[Chris Stephens]

I would argue that it is more sinister than that. Does the shadow Minister agree that the clause is also about a trade union’s capacity to use its political fund for general campaigning?

[Stephen Doughty]

Indeed, I believe that to be the case. I have heard some clear evidence from unions that maintain political funds and, although affiliated to the Labour party, undertake other activities, as well as from those that are not affiliated to the Labour party but maintain political funds. The Government have already taken forward extensive regulation relating to the Political Parties, Elections and Referendums Act 2000, the gagging Act and so on. A lot of unions believe that activities will fall under those provisions and are worried about how they will comply.

[James Cartlidge (South Suffolk) (Con)]

Will the hon. Gentleman clarify something? He seems fearful that the clause will result in less funding for the Labour party, but if that is the case, there must be people who are currently donating through this mechanism but do not want to.

[Stephen Doughty]

It certainly will lead to less money for the Labour party—that is very clear—but not because people do not want to give money. Union money is some of the most transparent and openly gifted in politics. Were I to discuss the funding of the Conservative party at length, I am sure you would rule that out of order, Sir Alan, but it well merits a debate on the Floor of the House. If I remember correctly, in the previous Parliament, the former Member for Banbury could not read out his entire Register of Members’ Financial Interests because it would have taken him longer than the 10 minutes he was allotted.

The fact is that the Government are seeking to frustrate the genuine giving of money to political funds, some of which is then used to contribute to the Labour party. The reality is that people lead busy lives or, for example, are part of a widely dispersed workforce, as USDAW made clear to me. The fact that the transitional period to comply with one of the most major changes in trade union law for generations is only three months underlines the Government’s true intentions.

My right hon. and learned Friend the Member for Camberwell and Peckham (Ms Harman) was absolutely right to raise this issue with the Prime Minister while she was acting Leader of the Opposition. She asked him to commit not to go ahead with these changes unless there was cross-party agreement. Is the Minister prepared to get to his feet and withdraw these measures and engage in genuine cross-party talks about the funding of party politics? I suspect not.

It is not acceptable for the Prime Minister to be curbing funds given transparently to the Labour party by hard-working people throughout the country while turning a blind eye to donations to the Tories from various corporate sources and hedge funds. If the clause stands part of the Bill unamended and the Bill receives Royal Assent, it will mark the abrupt end of the long-standing consensus in British politics that the Government should not introduce partisan legislation unfairly to disadvantage other political parties.

As Members will be aware from the oral evidence sessions, in 1948 Winston Churchill cautioned against taking such steps. He said:

“It has become a well-established custom that matters affecting the interests of rival parties should not be settled by the imposition of the will of one side over the other, but by an agreement reached either between the leaders of the main parties or by conferences under the impartial guidance of Mr. Speaker.”—[Official Report, 16 February 1948; Vol. 447, c. 859.]

Even Margaret Thatcher, a Prime Minister whose term was defined by her opposition to the trade union movement, considered proposals such as those set out in the Bill to be too extreme. She said:

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

[Interruption.] I know you are asking me to come to a conclusion, Sir Alan. I will be there in a matter of moments. She was right. The Bill and the clause are creating great unease, and I find myself agreeing with the person who I suspect spurred the Minister and I into politics in the first place, although of course for very different reasons. In the light of that, we are looking carefully at the SNP’s new clause, which we will come to in due course, and which would put the Churchill convention into the Bill.

In conclusion, the clause will restrict unions’ right to freedom of association and their ability to engage in political debates, and it will create huge administrative burdens. It is widely known that opt-in processes reduce participation—for example, our approach to auto-enrolment for pensions is based on an opt-out model, given the clear economic evidence.

Amendments 34 and 35 are probing amendments that can be used to argue that members should not be required to submit repeated opt-ins. I hope the Minister will give us his thoughts on them in due course.

[The Chair]

Before the Committee rises, I repeat that we are only up to clause 10 of 22, and we have a host of important discussions to come. The point of Committee stage is to question parts of the Bill before it goes back to the Floor of the House on Report. There are a lot of important things on the Government and Opposition sides that have to be dealt with.

Before the next Committee, I want the Whips to talk to each other. It is likely that this Committee will rise early this afternoon because there are a number of votes taking place from 4.30 pm. That restricts the Committee’s time and means that we have only two more sittings next week to deal with the remainder of the Bill, which I am not sure will be satisfactory. I ask the two Whips to meet in consultation with the other Opposition group to see whether we can get a bit of speed, so the questions can be answered as fully as possible.

Trade Union Bill (Fifth sitting)

Stephen Doughty Excerpts

Tuesday 20th October 2015 Public Bill Committees

[The Minister for Skills (Nick Boles)]

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

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

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

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

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

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

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

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Ballots: 50% turnout requirement

[Stephen Doughty]

I beg to move amendment 1, in clause 2, page 1, leave out lines 9 and 10 and insert—

“(iia) in which at least 50% of those who were sent a ballot paper in accordance with section 230(2) of the 1992 Act voted, and”.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 2, in clause 2, page 1, leave out lines 9 and 10 and insert—

‘(iia) in which at least 50% of those who according to the trade union’s reasonable belief were employed by the employer in a trade dispute, and whom the union reasonably believed would be induced to take part in the industrial action, voted and”

Amendment 7, in clause 3, page 2, line 9, leave out

“were entitled to vote in the ballot”

and insert:

“according to the trade union’s reasonable belief were employed by the employer in a trade dispute, and whom the union reasonably believed would be induced to take part in the industrial action,”

Amendment 8, in clause 3, page 2, line 10, leave out

“entitled to vote in the ballot”

and insert

“sent a ballot paper in accordance with section 230(2) of the 1992 Act.”

Amendment 20, in clause 5, page 3, line 6, leave out from “individuals” to the end of the paragraph and insert

“who according to the trade union’s reasonable belief were employed by the employer in a trade dispute, and whom the union reasonably believed would be induced to take part in the industrial action”

The amendment would be consequential to Amendments 1 and 2.

Amendment 23, in clause 5, page 3, leave out lines 15 to 21

Amendment 21, in clause 5, page 3, line 16, leave out from “individuals” to the end of the paragraph and insert

“who according to the trade union’s reasonable belief were employed by the employer in a trade dispute, and whom the union reasonably believed would be induced to take part in the industrial action”

The amendment would be consequential to Amendments 1 and 2.

Amendment 22, in clause 5, page 3, line 20, leave out from “who” to the end of the paragraph and insert

“were sent a ballot paper in accordance with section 230(2) of the 1992 Act”.

[Stephen Doughty]

Amendments 1, 2, 7, 8, 20, 23, 21 and 22 stand in my name and the names of my hon. Friends the Members for Wallasey (Ms Eagle) and for Edinburgh South (Ian Murray), who are not in Committee today but are taking great interest in its proceedings.

Let me first turn to the substance of clause 2, to which our lead amendments 1 and 2 refer. The clause sets out measures by which a ballot and subsequent industrial action will only be lawful if there is a minimum 50% turnout among trade union members who are entitled to vote. Committee members will know from our evidence sessions that the overwhelming majority of trade unions and the TUC are opposed to the clause in principle and are highly concerned that it seeks to introduce excessive turnout and voting thresholds for ballots for industrial action, and that it further defines abstentions as no votes. Let me take each of these in turn.

If the clause is successful, industrial action will be lawful only if there is a minimum 50% turnout among trade union members who are entitled to vote, outside certain “important public services”—as the Government define them—as referred to in clause 3, which we will come to. A simple majority will need to vote in favour of strike action. For example, if 500 members are balloted, at least 250 must vote and at least 126 must vote yes for industrial action to go ahead.

It is important to set out at the beginning that such thresholds are rarely used anywhere else in our democracy. They were not even used in recent referendums, one of which was very significant—I am sure there will be another significant one in the next few years—and certainly not in the general election or other elections up and down the country. Much as we might wish turnout to be higher on all those occasions, I am sure that the threshold provision is relevant to the election of many members of the Committee; an extensive list has been produced by the Library.

Ministers have implied in the media and in other chat about the Bill that recent industrial action in, for example, the rail sector shows the need for the change, yet a recent ASLEF ballot for industrial action on the tube would have passed the proposed threshold, with a turnout of 81%, as would many other examples. Let us be clear: trade unions, as witnesses made repeatedly clear in their evidence, want to see high turnouts and the highest engagement when considering a matter as serious as industrial action or, indeed, a full strike. Why would they not want to? They want to see a high turnout. They want to see their members engaged. They want to be organised and to demonstrate a clear wish for action as a last resort.

Government Members have raised a number of examples of low turnouts. We could debate the merits of action in each case, but I fear—this fear is shared by many of the witnesses who gave evidence and across the trade union movement—that the Government are, in reality, simply seeking to silence unions that do not reach or narrowly miss such arbitrarily high thresholds, despite having legitimate grievances about pay, pensions or health and safety. I am thinking of one particular example: the strike referred to in evidence from the Royal College of Midwives, which was the first time in 154 years that it had taken such action. Under the Bill, that strike would have narrowly missed the threshold.

As the Minister will know, there was a lot of focus on this clause in the oral evidence sessions. While a swathe of those who gave evidence were against the introduction of thresholds, I admit that a number spoke in favour of it, although they had little evidence to back up their claims. For example, Dr Marshall of the British Chambers of Commerce spoke of how his support for thresholds was underpinned by his belief that the number of people affected by industrial action was not going down, and he emphasised extensive indirect effects. That claim was made by a number of other witnesses and by the Government. The reality is that under repeated questioning, they were unable to provide any evidence to substantiate the claim of indirect effects.

As we have made repeatedly clear, if the Government truly had altruistic intentions, they would offer clear support for our amendments in Committee. Our amendments would boost participation by expanding the use of tried and tested methods such as secure workplace balloting, which has repeatedly brought about high turnout thresholds in Central Arbitration Committee ballots and in other matters, and by bringing things into the modern age through e-balloting. We will have a lengthy discussion of these matters later, but it is crucial to underline them now. Unsurprisingly, the Government are not supporting our amendments.

John Hannett, the general secretary of the Union of Shop, Distributive and Allied Workers, hammered home the point that for thresholds to be met and for higher turnouts to be achieved, we must help as much as we can to get turnout up. That is especially the case in dispersed workforces such as those in the retail and distributive sectors, which operate 24/7. I have had extensive discussions with unions such as USDAW about the inherent difficulties and the time it takes to engage with small workforces such as those operating in small shops around the country. I know USDAW members operating, for example, in local Co-op stores in my constituency. They are dispersed and working long hours, and the efforts required to engage them in the process of balloting need to be made as straightforward and easy as possible. It is not a lack of concern about issues in their sector or any ballot proposal that prevents such workforces from engaging; often, it is the very real practicalities of their lives and professions. That situation is repeated across many other sectors.

Long gone are the days of huge unionised workforces in single locations. The reality is that workforces across the country are increasingly dispersed, with people working different hours and in many different locations. John Hannett said clearly:

“I have no problem with thresholds, but it is the facilities and…access”—

access to ballots in this case—

“that is the issue.”––[Official Report, Trade Union Public Bill Committee, 13 October 2015; c. 24, Q61.]

More fundamentally, the Opposition are concerned that the clause, and the Bill more generally, will undermine constructive employment relations. The reality is that the introduction of ballot thresholds will mean that unions need to take more time in the run-up to ballots to ensure necessary turnout exceeds by a significant margin whatever legal threshold the Government arbitrarily seek to set. That will inevitably divert time and effort away from finding an amicable settlement, which I am sure is what all members of the Committee want.

We do not want to see strikes or industrial action—we are well aware their consequences—so the Government should be doing everything in their power to facilitate negotiation and reasoned discussion about concerns. The reality is that the thresholds will remove the incentives for employers to seek an early resolution to a dispute. I believe that many of them will decide to wait and see whether a union can meet the strike thresholds before they make a revised offer. That is not a model for modern industrial relations.

It is also crucial that the Committee recognises that the Government are seeking to rush through these proposals without proper consideration or consultation. The Minister will know that the Regulatory Policy Committee roundly criticised the Government’s approach. It concluded that the Department’s impact assessment on ballot thresholds was “not fit for purpose.” Those are damning words. While the impact assessment estimated that the statutory thresholds contained in clauses 2 and 3 would reduce the number of days lost to industrial action, the RPC described as inadequate the Government’s

“assessment of the costs and disruption caused, and its impact on the economy”.

That underlines the sense that we got from many witnesses that grand claims were being made about the indirect effects of industrial action, but they were simply not substantiated by evidence.

It is worth noting that, in the previous Parliament, the RPC issued just over 2,000 opinions, but there were only 14 instances in which a Department proceeded to the next stage of the policy process on the basis of an impact assessment rated by the RPC as “not fit for purpose.” Will this be another example of flying in the face of common sense and the views of a respected independent body?

The clause defines abstentions as no votes for industrial action. We heard repeatedly from witnesses—in particular, from those with legal expertise in the field—that that is undemocratic. Others went as far as to say that that is illegal. International agencies with responsibility for supervising complaints with human rights standards have repeatedly criticised the use of strike ballot thresholds in countries across the world. The International Labour Organisation stated that, in strike ballots, only votes cast should be taken into account.

The Government’s proposals go well beyond what is endorsed by internationally recognised standards. I asked the Minister in his oral evidence session what assessment he had made of legal challenge to the Bill and he said,

“we are not anticipating legal costs to fight.”––[Official Report, Trade Union Public Bill Committee, 15 October 2015; c. 165, Q410.]

I am sure we will return to that again and again, because there is a strong weight of evidence to suggest that the Government will face significant legal costs from the Bill, and not just on this issue, but on many of the provisions on picketing and the implications for the devolution settlement, to which we will come in due course.

The Minister’s answer stood in stark contrast to the weight of legal opinion the Committee heard. I refer in particular to a comment from Stephen Cavalier of Thompsons Solicitors, who said,

“the provisions under the ILO convention specifically say that an abstention should not be treated as a no vote, and that is a clear area of potential illegality. There are not similar thresholds in any other European Union member states or Council of Europe convention states. The Bill introduces a new requirement that is likely to be found to be unlawful. In particular, the treating of an abstention as a no vote is likely to be subject to legal challenge.”––[Official Report, Trade Union Public Bill Committee, 13 October 2015; c. 33, Q79.]

We could not get a clearer opinion than that from a respected firm of solicitors who engage in trade union and employment law. That view about the inevitability of legal challenge was shared by Shane Enright of Amnesty, Sara Ogilvie of Liberty, Professor Keith Ewing and the representatives of the Welsh and the Scottish Governments in relation to a wide range of issues.

The amendments in this group attempt to address and expose other concerns we have on this clause and related clauses. We believe that, in this Bill, the Government are deliberately attempting to introduce the maximum number of obstacles and risks for trade unions as they go about exercising their democratic rights. Our amendments are designed to challenge that and to provide clarity in the regrettable circumstance that the Bill is passed in its current form.

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[Ian Mearns (Gateshead) (Lab)]

Of course, in all of these things we want reasonable people to behave reasonably, but the new ballot thresholds may provide a perverse incentive to employers not to seek an amicable resolution to a potential strike situation because of the heightened likelihood of a no vote with, first, people who do not vote counting against and, secondly, the possibility that the threshold might not be met. An amicable settlement will become less likely, particularly if an employer—there are some employers like this—feels that it is an advantage to press it to the ultimate sanction.

[Stephen Doughty]

Indeed. I also suspect that that would be the case if employees suspect that an employer will use badly drafted clauses such as this to attempt to bring legal proceedings against the conduct of a ballot. This is all about ensuring the balance of power and responsibility between employers and employees in order to promote dialogue, negotiation and settlement. I agree with my hon. Friend that there are many provisions in the Bill that seek to undermine that balance and, therefore, undermine the possibility of negotiations that would ultimately prevent industrial action or strikes.

Amendment 2 seeks to protect trade unions from legal challenges in the event that they may have inadvertently sent a ballot paper to an individual who is not entitled to vote because they are not employed by the employer involved in the dispute. That is an important point in exposing some of the risks in the Bill as currently drafted. Business structures in the UK are increasingly complicated, and outsourcing is prevalent in many companies. Companies use many different structures and set-ups to conduct their operations. As a result—some members of the Committee might be surprised by this—individuals are often not aware of who is their legal employer. The amendment would mean that unions could rely on information provided by their members about who they believe their employer to be, rather than needing to make additional inquiries of the employer. The amendment also states that the 50% turnout requirement will only apply to individuals

“whom the union reasonably believed would be induced to take part in the industrial action”

when the ballot was issued. That wording would bring clause 2 in line with existing case law on industrial action ballots and would mean that unions are less vulnerable to vexatious legal challenges. Will the Minister share whether he believes that the clause, as it stands, is in line with existing case law on ballots and whether risks such as those I have exposed here exist?

[Ian Mearns]

Another clause will remove the check-off system for some employers. The check-off system provides, through the payroll records, a record for employers of trade union members in a particular employment situation. Removing the check-off system, tied with clause 2, removes the ability of employers to know who is eligible to vote in a strike ballot.

[Stephen Doughty]

That is an important point. During our considerations we will see that, rather than hanging together coherently, the Bill belies its original drafting intent and is more like a Swiss cheese full of holes. Many aspects of the Bill do not sit together well because they are being put together for a different purpose than what the Government say they are trying to achieve.

Amendments 7 and 8 would apply similar principles to those that I have just laid out, to clause 3 of the Bill which deals with the proposed 40% threshold. I know we will come to that in due course. We have a number of serious concerns about the 40% threshold that go beyond even our concerns about the 50% threshold, but the same principles exist. If we are to have thresholds, we need to ensure that unions will not be opened to all sorts of vexatious legal challenges.

Amendment 20 would apply a similar principle to the reporting requirements on ballots outlined in clause 5 of the Bill. Amendment 23 would remove the requirement on trade unions to take the responsibility of informing members and employers whether the 50% turnout threshold was met and, where relevant, whether the 40% turnout threshold was met. I do not understand why the Bill—evidenced throughout its text—seeks to bog down trade unions in extra red tape, particularly when the Government claim that it is all about reducing regulation and burdens. Surely employers would be able to easily calculate whether a trade union has met any statutory thresholds applied using the numbers provided by the trade union? I really do not see why this reporting requirement is necessary.

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

Does my hon. Friend think this goes beyond the percentages required for a ballot? The fact is that companies with recognised trade unions on site have either gone through voluntary recognition or compulsory recognition, which means that the workforce have already been balloted on whether they want a trade union representative liaising on their behalf with an employer. Is this legislation not going way beyond ballots and actually trying to give employers the ability to de-recognise unions across the country in all sorts of different workplaces, public or private?

[Stephen Doughty]

I believe that the Bill has many sinister intents. There are many provisions that can be used to tip the balance between employers and employees well beyond what would be reasonably expected in a democratic society. We heard during the evidence sessions that the Bill and these provisions put us at the bottom of the league when it comes to international labour standards and the rights of workers and trade unions.

Amendments 21 and 22 are to clause 5 and are consequential to other amendments for consistency.

Before I conclude on this group, it is worth referring to some of the comments. Many comments were made about this set of proposals in the written and oral evidence and it is important to bring the Committee’s attention to a number of them.

The Royal College of Nursing said that:

“The changes that are proposed…will do nothing for the improvement of industrial relations. The emphasis on ‘strikes’ and seeing all industrial action through the prism of strikes is misleading. This is at a time when the number of disputes is low compared to the past. The effect of the proposals to set thresholds”—

and a whole series of other measures—

“is not a ‘neutral’ step, rather it further strengthens the power already held by employers in workplace disputes now.”

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

The hon. Gentleman has made an excellent speech. One of the other consequences of the thresholds that came out in the evidence was organisations concerned about a real impact on gender equality issues and on women workers trying to pursue industrial action. Is the hon. Gentleman concerned, as I am, that that could lead to a situation in which the gender pay gap widens as a result of this legislation?

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[Stephen Doughty]

The hon. Gentleman makes a very important point, which was made on Second Reading and by a number of witnesses. The Bill has a disproportionate impact on women, many of whom would be standing up on issues such as disparities in equal pay. We have repeatedly heard how, despite the Equal Pay Act being so many years ago, the reality is that women earn significantly less than men for the same hour of work conducted, particularly in certain sectors. Unions play a crucial role in standing up for those women. Importantly, I mentioned the diffuse nature of the workforce in sectors such as retail, highlighted by USDAW and others. A lot of women work in those sectors, and there will be a disproportionate impact.

Turning to some of the other evidence, we heard from the GMB which underlined the point I made that thresholds will lead to unions taking more time in the run-up to ballots to ensure the necessary turnout. It stated in written evidence that

“Employers will be encouraged to sit on their hands and wait to see if the threshold can be reached rather than address the underlying issues in the dispute.”

USDAW, which I have referred to a number of times, said:

“The best method to ensure high levels of workplace democracy is to make it as easy as possible to vote and to ensure that each vote counts equally. Under the proposed system of ballot thresholds, an individual choosing not to vote is likely to have more of an impact on the outcome of the ballot than someone choosing to vote against industrial action. If an individual votes against industrial action, their vote will be added to the turnout threshold even if they are in the minority, meaning that their vote could help to ensure that the ballot threshold is met. However, if someone chooses to abstain, their vote will not be added to the turnout threshold potentially meaning that, even if the vast majority of votes cast were in favour of action, the ballot will not meet the threshold requirements. As such—”

—USDAW is categorical about this

“the proposed ballot thresholds will clearly be detrimental to workplace democracy.”

I have another piece of evidence from Unison:

“In the UK an absent vote is not regarded as a negative one. There are a range of reasons why trade union members might not vote.”

It then gives a very practical example:

“There might be a positive decision to abstain. They might be on holiday or ill. They might not have an opinion on the dispute and rely on their colleagues to make their views clear.”

[Tom Blenkinsop]

Does my hon. Friend agree that they can be in management and also in the trade union, and it is dependent on the employer to recognise that member of management within the business unit, although not necessarily in their branch?

[Stephen Doughty]

That is indeed the case. To touch on the point made by the hon. Member for Glasgow South West, low-paid workers are more likely to move and change address, and they might not regularly update the trade union on their latest details.

Unison is very clear:

“Rather than enabling such members to participate more easily in trade union ballots, the Trade Union Bill will restrict the democratic rights of working people and the ability of trade unions to represent their members in the workplace. It will ultimately lead to a diminishment of workplace democracy.”

We also had a response from UCATT, an important union representing workers in the construction sector. We did not hear from UCATT in the oral evidence sessions, which was a shame, but it has submitted written evidence, which says:

“It should be also noted that for trade unions taking strike action is always a last resort, no union asks members to lose money on a whim, it is only called for following an end to protracted negotiations that 90% of the time reach an amicable settlement.”

That point cannot be overemphasised. Unions want to find resolutions to disputes, but the Bill puts a whole series of barriers in the way of successfully resolving disputes.

Finally, it is important to look at some of the Bill’s potential legal contraventions. I mentioned the evidence given by Thompsons Solicitors. It also submitted evidence to the Government’s consultation, the conduct of which was significantly lacking, as identified by the Regulatory Policy Committee. In section 10 of the submission from Thompsons Solicitors to the Department on the consultation on ballot thresholds in important public services, it says:

“The ballot thresholds in ‘important public services’ will engage Article 11 of the European Convention on Human Rights. Any restriction on the right protected by Article 11 must be ‘prescribed by law’ and ‘necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others’. To be ‘prescribed by law’ the proposed legal framework must have sufficient clarity and precision to enable the trade union on whom the restriction is imposed to regulate its conduct accordingly (i.e. to know exactly which of its members the additional threshold applies to). There is a very real prospect, on the evidence so far, that the government’s attempts to meet this standard will fail. It is completely unacceptable to palm responsibility for identifying whether a particular member is covered by the additional threshold off on to the trade union, (paragraph 17 of the consultation). The problem will be particularly acute when considering ‘mixed’ balloting constituencies—i.e. ones including some members who are covered by the additional ballot threshold, and some who are not.”

The complexity and uncertainty created by the way the Bill is drafted provides all sorts of grounds for legal challenge and undermines the ability of unions to stand up for their workers. Industrial action must always be seen as a last resort.

[Ian Mearns]

My hon. Friend makes a powerful speech. We are in a period of historically low levels of industrial action, with only about 300,000 days lost to strike action in the last year or so, compared with about 130 million days lost to sickness absence. From that perspective, we are looking at such a low level of disruption from industrial action compared to sickness and industrial illness. It accounts for just 300,000 days, as compared to 130 million.

[Stephen Doughty]

The statistics my hon. Friend quotes are very accurate. During the oral evidence sessions, we mentioned a number of times that the impact of industrial action on actual days lost, whether to customers or parents or users of the health service, is very small compared to the number of days lost for other reasons. We only have to look at the statistics collected by Transport for London on lost customer hours. Far more customer hours are lost due to signal failures, broken-down trains, weather and so on than as a result of industrial action. In the words of the Chartered Institute of Personnel and Development, the Government’s plans to reform trade union law are an “outdated response” given the challenges that employers actually face today, many of which my hon. Friend referred to.

[Ian Mearns]

One passenger group working on railway delays estimated that more working hours were lost from people being delayed on their train journeys than were lost from industrial action taken by railway workers.

[Stephen Doughty]

That is indeed the case. It is certainly borne out by the evidence that I have seen from Transport for London. The Committee has heard from a number of train companies and representatives of passenger organisations, and indeed they also implied that this was the case. The reality is that the impacts of industrial action are very small. In conclusion, I fear that the Bill and especially clause 2 will make industrial relations worse, not better. Introducing arbitrary thresholds beyond international norms, potentially in ways that are illegal, and without any clear evidence of need underpinning that or any accompanying measures to ensure the maximum participation possible—as I said, we will return to this—suggest an ill political intent, quite frankly. That is why we will oppose clause 2 today, and we may seek to move any one of these amendments to a vote, depending on what the Minister has to say.

[The Chair]

We will now have a debate. Please keep in order by mentioning the word “threshold” every few minutes.

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[Nick Boles]

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

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

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

[Stephen Doughty]

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

[Nick Boles]

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

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[Nick Boles]

I will not give way.

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

[Stephen Doughty]

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

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

[Nick Boles]

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

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

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[Stephen Doughty]

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

[Nick Boles]

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

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

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[Nick Boles]

Fair enough, Sir Edward.

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

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

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

[Stephen Doughty]

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

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

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

[James Cartlidge]

The point of equality impacts has been raised many times. Obviously, the threshold makes no specific statement in any sense on that, but does the hon. Gentleman accept that, going back to the Minister’s point about school closures and the impact of major strikes, women are among the most disproportionately affected, particularly mothers with children at school?

[Stephen Doughty]

I have no doubt that women are affected by strike action. Nobody on the Opposition side of the Committee is attempting to deny that. We are making a point about the impact of the Bill as a whole and its disproportionate impact in every strike ballot that is going to be undertaken under the new rules.

[Ian Mearns]

Do fathers take children to school?

[Stephen Doughty]

Yes, fathers do take children to school, but we are concerned particularly about the impact of the Bill on women trade unionists, which many witnesses have made clear. As I have said, trade union members represent one tenth of the UK population. I will come back to the Minister’s comment on that in a moment.

The hon. Member for Glasgow South West made the point that trade unions will only in very rare circumstances proceed with industrial action if they are not going to be able to get their members to take part. That should be the real test of whether or not there is consent in the broader sense. I liked the hon. Member’s reference to apparently Jedi-like powers to induce members into industrial action. All I can say is that this is not the Bill Ministers are looking for.

The Minister made some very false divisions. I intervened when he made the point that Opposition Members are somehow standing up for militant trade unionists and Government Members are standing up for ordinary members of the public. What absolute nonsense! The idea that there is such a division is simply not the case. Every one of those 6 million trade union members is a member of a family who care about their conditions—whether health and safety, pay, pensions, or working arrangements. I believe they have deep concern about many of the actions that the Government are taking to undermine workers, particularly in the public sector.

[Jo Stevens]

Would it not be right to say that many public sector unions have taken industrial action in order to protect the very public services that Conservative Members say are affected by the disruption?

[Stephen Doughty]

My hon. Friend makes an excellent point. I am sure that, without the Bill, we would get into a wider debate about the Government’s attitude towards public services and their funding. The Minister talks about the Bill being a minor adjustment. That is simply not the case. It is the most dramatic change to trade union legislation in a generation. That is the considered view of many of the legal experts and others who have examined it. It is not “tweaking” to change the rules on abstention, potentially in breach of international conventions. It is very significant. The way that the Government and the Minister have been dressing this up as a tiny movement here and there to bring things in line is disingenuous.

[Ian Mearns]

We are getting to the nub of the problem the Bill is trying to sort out. Government Members have repeatedly talked about the disruption caused by industrial action in schools, but thankfully in this country industrial actions in schools are few and far between. To put it in context, according to the ONS, the problem the Bill is trying to sort out—industrial action in this country—added up to just 0.00005% of all days worked. We are sitting in this room trying to sort out that problem.

[Stephen Doughty]

My hon. Friend makes a very clear point about the problem the Bill seeks to solve. We have heard that again and again. I am pleased that the Minister said he will ask the ONS to look at the issue of indirect impact. It will be helpful for the House to have that information. I suspect it will confirm many of the views that have been expressed by Opposition Members and many of the witnesses. It is disappointing that some witnesses, including the CBI and others, made grand statements about the need for the Bill without being able to justify it. Even without ONS statistics, there are other ways of making the case clearer, but they have been unable to do it.

[Julie Elliott]

On whether bits of the Bill are legal and whether they will end up in the courts, the evidence presented last week by legal experts Stephen Cavalier and Professor Keith Ewing confirmed that the measure would end up in the courts. Does my hon. Friend agree?

[Stephen Doughty]

I certainly do. I am not a lawyer and I do not have experience of testing such things in the courts, but a significant amount of legal opinion suggests that the Bill is potentially in breach of a series of international conventions, let alone the devolution settlement and existing domestic legislation, and it questions whether many aspects of the Bill are enforceable in the courts.

Going back to the necessity of the measures in the Bill, the Minister has said that he accepts that there are historically low levels of industrial action in this country, and yet the Government have repeatedly extrapolated a sledgehammer from a limited number of examples. We can debate at length the rights or wrongs of any individual strike or industrial action, but we are making legislation for the whole country, all forms of industrial action and all trade union members. The legislation will affect every single trade union member in this country and every single dispute. It simply cannot be right to extrapolate and make general points on the basis of a few examples that the Government have used to back up their case.

[Dr Cameron]

Does the hon. Gentleman agree that the public are unlikely to look on the Bill favourably, given the potential legal challenges and the impact on the public purse?

[Stephen Doughty]

One interesting aspect is that the public are not aware of the likely impact on the public purse of legal challenges arising from the Bill. We can look at a number of examples. For example, the Government tried to take the Welsh Government to court over changes to the Agricultural Wages Board, which has a lot of similarities to aspects of the Bill. It resulted in an extremely expensive legal case, which went all the way to the Supreme Court. If the public were aware of the likely challenges and costs arising from the Bill, they would take a very dim view.

Let me turn briefly to what the Minister said about Opposition amendments. I appreciate his clarifying that unions are protected under section 227 of the 1992 Act. He said that they are protected under reasonableness measures in existing case law. If the Government intend to proceed with this legislation, I urge him to look carefully to ensure that those protections actually exist. I will describe more such protections when we discuss the next amendment.

I have less confidence in what the Minister said in opposing amendments 1 and 7, so I will press them to Divisions and test the will of the Committee at the appropriate point. It would be helpful, given the nature of the debate between the Minister and my hon. Friend the Member for Middlesbrough South and East Cleveland, if the Minister could clarify his position on my hon. Friend’s point in writing to the Committee. It is important that the Committee is in possession of the full facts on the nature of how disputes are played out and how balloting takes place in the workplace. I re-emphasise the concerns that we and the vast majority of people who gave evidence have about clause 2 and its many implications.

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[Stephen Doughty]

I beg to move amendment 3, in clause 2, page 1, line 14, at end insert—

‘(3) Small or accidental failures in the arrangements for carrying out the ballot which do not affect the result of the ballot are disregarded for the purposes of compliance with section 226.’

The amendment would ensure that small or accidental mistakes in the carrying out of a ballot which are immaterial to the outcome of the ballot are disregarded and are not grounds for complaint to the Certification Officer or recourse to the courts.

[The Chair]

With this it will be convenient to discuss amendment 13, in clause 3, page 2, line 24, and insert?

‘(3ZA) Small or accidental failures in the arrangements for carrying out the ballot which do not affect the result of the ballot are disregarded for the purposes of compliance this section.’

The amendment would ensure that small or accidental mistakes in the carrying out of a ballot which are immaterial to the outcome of the ballot are disregarded and not grounds for complaint to the Certification Officer or recourse to the courts.

[Stephen Doughty]

I do not intend to detain the Committee for long on these two amendments, which are designed to be probing and to highlight the difficulties that unions may face when seeking to comply with the proposed threshold rules. The amendments relate to some of the points we have been discussing about the potential for vexatious legal challenges on the conduct of ballots that I believe, given the history of industrial relations in this country, some employers may choose to make.

I have already outlined why we have serious concerns that the Bill is attempting to put as many barriers as possible in the way of people exercising their democratic rights. It is worth looking at what Sara Ogilvie of Liberty said in the evidence sessions. She summarised her concerns by saying that:

“My concern is that the proposals in the Bill would absolutely render the right”—

of industrial action—

“illusory, largely by creating a system of bureaucracy and hurdles that people have to overcome.”––[Official Report, Trade Union Public Bill Committee, 13 October 2015; c. 60, Q158.]

That concern clearly applies to the matters we have just discussed, but I want to flag up a further, related concern.

The Bill does not provide trade unions with any defence if they make a minor technical mistake when sending out ballot papers, even when they have made genuine efforts to comply with any new requirements. Trade unions are currently protected from small accidental failures when identifying who should be balloted and when sending out ballot papers. Mistakes that would not affect the outcome of the ballot should be disregarded.

The amendments would extend the small accidental failures defence to the new 50% and 40% turnout requirements. If the Minister believes that trade unions are already protected in that regard, as he has said, will he explain why? Will he reassure those who are deeply worried that the proposal will be yet another tool in the hands of those who would attempt, in a vexatious manner, to frustrate the legitimate expression of trade unions’ rights, such as by complaint to the certification officer through the proposed new powers or by recourse to the courts? What are his views on that?

[Nick Boles]

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

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

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

[Stephen Doughty]

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

Amendment, by leave, withdrawn.

[Chris Stephens]

I beg to move amendment 90, in clause 2, page 1, line 14, at end insert—

‘(3) This section shall not apply to trade disputes in Scotland.’

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[Chris Stephens]

Absolutely. The current figures show that there is less industrial action in Scotland than in the rest of the UK. That suggests that partnership working is successful and leads to less industrial action and better working relationships across the board. We know that many public bodies oppose the Bill. Some public bodies have gone even further and said that they will defy the Bill. This can only lead to conflict with other public bodies, conflict across the public sector, and it could lead, as Professor Keith Ewing suggested, to a constitutional crisis across the UK. It is rather ironic that this is coming from the UK Government, when they usually point the finger at other people for causing constitutional crises across the UK.

The trade union movement is the largest group in civil society and we should be working in partnership. I look forward to the debate and will indicate in my summing-up whether we wish to push any amendments to a vote.

[Stephen Doughty]

It is a pleasure to move on to one of the most significant parts of the Bill in relation to its potential legality, let alone its potential for implementation.

I wish to speak to our amendments 11, 12, 42, 72, 51 and 73, but I shall respond first to the speech by the hon. the Member for Glasgow South West, many aspects of which I have a great degree of sympathy with. I entirely understand his concerns about the impact of the Bill on Scotland, particularly in areas that are clearly devolved. Let me be clear at the outset that, in line with the principles of togetherness and solidarity that underpin the trade union movement, we intend to oppose and to attempt to defeat every substantive clause of the Bill in order to stand up for workers in every part of the United Kingdom, including Scotland. Our amendments also highlight specific areas that we believe most clearly breach the existing devolution settlement, in line with the evidence provided to us by the Welsh and Scottish Governments and other concerned stakeholders.

--- Later in debate ---

[Ian Mearns]

Hon. Members will be aware that in the north of England the Government are seeking to establish elected mayors covering regions or sub-regions, and great cities and local enterprise partnership areas in places such as the north-east of England. Does my hon. Friend see the capacity for additional conflict if elected mayors are established and then instructed by Her Majesty’s Government about how they should conduct industrial relations affairs within their own elected area?

[Stephen Doughty]

I agree with my hon. Friend. Not only does that apply to such relationships going forward, but we need to look at the impact of the Bill retrospectively. I would appreciate clarification from the Minister on that. Obviously, local and devolved government across the UK already has extensive contractual arrangements on matters such as check-off, facility time and so on. That is particularly true in the public sector, but also in relation to bodies that receive public funding. Those things are woven into the fabric of employment contracts up and down the land. The Bill simply drives a coach and horses through that and could result in a serious number of legal challenges.

[Chris Stephens]

On the point raised by the hon. Member for Gateshead, if an elected mayor, a local authority political party, or even a devolved Administration political party puts in its manifesto that it wants to deal with workers by having good facility time and check-off, surely that mandate should stand and should not be interfered with.

[Stephen Doughty]

The hon. Gentleman makes an important point. Who should have the power in that situation to determine the type of partnerships and arrangements that exist? Should it be for the UK Government, who claim they are pro-devolution, to interfere in those relationships and negotiations?

The implications are clear. I refer to the position that many Scottish local authorities and Scottish Labour party have taken regarding the Bill, which is essentially a position of non-compliance, particularly with the measures abolishing check-off and curbing facility time. To date, every single Labour-led administration in Scotland has passed motions to that effect. They are giving a clear signal of intent regarding the potential constitutional clash we are heading towards.

[James Cartlidge]

I am very interested in amendment 12, which states:

“None of the provisions of this section shall apply to services provided by the Mayor of London”.

In other words, thresholds would not apply in London. In the city where we have had the greatest problems with tube and bus strikes with low turnouts, on which we have had a huge amount of evidence, is the hon. Gentleman seriously suggesting that we should leave London out of the thresholds?

[Stephen Doughty]

The point we are making with the amendments is that it should be for devolved Governments, and the Mayor of London, to determine the type of relationships they want to have. If the hon. Gentleman wants to get into a debate about the Mayor of London’s relationship with the trade unions, I think he is heading on to a sticky wicket. We heard nonsense from the Mayor of London on Second Reading. That goes back to a fundamental point: we are constantly looking at the impact of strikes rather than the reason for them. It is as though they were all dreamed up by a bunch of militants without cause. That is simply not the case. I suggest we do not go down the line of debating the Mayor of London’s industrial relations.

Going back to Scotland, Scottish local government is making it clear that it will not implement the Bill. If that is the case, as also appears to be the suggestion of the Welsh Government and other public bodies across the UK, we are heading into difficult territory.

The Labour party believes that a collective response and approach to this divisive legislation is both the most ethical and efficacious way to proceed, in the best traditions of trade unionism. Although I understand the principles underpinning many of the SNP amendments in this group that are intended to exempt to Scotland alone from particular clauses, our position is clear. We want to exempt all of the United Kingdom, including Scotland, from all the clauses of the Bill. We intend to do so by voting against each clause of the Bill, and I hope the SNP will continue in the vein already established in Committee and join us in doing so in the principle of solidarity.

There is much that the hon. Member for Glasgow South West and I agree on. However, although I understand the intent behind the SNP amendments, there is a risk that amendments that seek to defend the rights of workers in only part of the UK will play into the Government’s hands and encourage a race to the bottom. I hope the SNP will continue its support in defeating each clause of the Bill and join us in voting against the Bill, should it proceed, on Third Reading.

The SNP has tabled amendments 84 and 85, which relate to consent to legislate on a range of issues across the UK. We believe that devolved nations should be exempted, as per our amendments. Nevertheless, there is no inconsistency in supporting those SNP amendments. We would also look favourably on a number of other amendments the SNP has tabled to later parts of the Bill.

I turn to amendment 11 to clause 3. Setting balloting thresholds for the range of important services outlined in the Bill will clearly have a direct impact on public policy areas that are wholly devolved. As a Welsh Member of Parliament, I am very concerned that the Bill could breach the devolution settlement, whether in Wales, Scotland, local authorities in England or London. In clause 3, it could particularly affect health services and the education of those aged 17.

[The Chair]

Order. As we have had a debate about Jedi knights, may the force be with you all.