Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Bill

Viscount Younger of Leckie Excerpts

Monday 11th November 2013 Lords Chamber

[The Parliamentary Under-Secretary of State, Department for Business, Innovation and Skills (Viscount Younger of Leckie) (Con)]

My Lords, my first point is that I do not wish to make any reference to reports that I read in the Sunday Times yesterday. As the noble Lord, Lord Monks, correctly said, the certification officer has been called in to investigate; it is not for me to comment further and it is for him to progress or otherwise.

Secondly, I want to acknowledge the many distinguished Members opposite who have led unions and have had substantial responsibility for individuals within the unions in the past. Some of these unions have been very big, with many hundreds of thousands of members, so I want to thank those noble Lords for their contributions. I realise that in the past they have been very much in the public eye with all that has gone on over several decades.

I shall deal with the amendments to Clause 36 and the question of whether the clause should stand part together. Clause 36 is intended to give widespread assurance that unions are able to contact their members and that, as a result, union decisions reflect the will of their members. This should enhance the democratic credibility of union actions to a wider audience. The noble Lord, Lord Stevenson, could not have put it better. This is important because unions have extensive influence—in public life and in the daily lives of their members. Actions they take can also have an impact on non-members. As the noble Lord, Lord Monks, and the noble Baroness, Lady Turner, have rightly highlighted, the statistics demonstrating the value that the public place on the unions is high. This is why there is a need to be sure that the registration lists are up to date.

Union members work across a range of critical areas, including in the public sector. Union membership is around 56% in the public sector and 14% in the private sector. We do not want to change or inhibit the vital role that unions can and do play in society—which was raised by the noble Baroness, Lady Drake—but we want to ensure that there is confidence in their accountability to their members. Since 1984, there has been a statutory duty on unions to maintain a list of members’ names and addresses. This is currently enshrined in Section 24 of the Trade Union and Labour Relations (Consolidation) Act 1992, which requires unions to keep the list up to date,

“so far as is reasonably practicable”.

This register will be a union’s primary source for ensuring that its communications, including ballot papers, reach members. I think everyone agrees with the principle of maintaining the register. That principle is not under scrutiny today, and the existing duty remains unchanged. However, there is no mechanism to require reporting on compliance with the statutory duty.

Clause 36 introduces a reporting regime that is proportionate to the practicalities of the duty to which it relates. Unions will be required to supply an annual membership audit certificate to the certification officer, alongside the annual return. As this provision is about giving widespread assurance, all unions will have to make the most recent certificate available to those who request to see it, either free or for a reasonable charge. The certification officer will also have to keep copies of all certificates and allow the public to inspect them. This addresses the fact that there is currently no real way for members, employers or the wider public to check how far the existing duty is being complied with. Finally, Clause 36(3) and (4) ensure that a trade union can discharge the new duty on behalf of its branches and that federated unions must comply with the new duty.

Amendment 118A—and Amendment 118D, which is consequential on it—seeks to limit the duty on unions so that they do not have to submit a membership audit certificate every year, but only if a complaint is made. In practice, if a complaint is received by the certification officer and he investigates, he will want to be satisfied that there is no breach of the duties in relation to the register. If he discovers such a breach, it would be more appropriate to provide a remedy as soon as is reasonably practicable, rather than to impose a reporting requirement. If there were no annual reporting requirement, the legislation would not achieve the level of routine assurance that we want for union members and the wider public. Only individual union members have the right to check their details on the membership register, and they must be predisposed to do so. Even if the member does this, he or she has no right to see all of the register and, in any case, cannot know whether other names and addresses are up to date. Nor can the member know who should or should not be on the register. Therefore the member cannot ascertain or guarantee the accuracy of the register in its entirety. If the member checks the register and finds problems with the accuracy of his or her details, they can make a complaint to the certification officer. However, only the member has the right to do this and, as I have said, they will not be able to determine the accuracy of the register as a whole. If anyone else has reason to believe there might be inaccuracies, they could not make such a complaint. Even if the certification officer received allegations about the union’s register, under the current law he would have insufficient powers to investigate.

I am aware that unions and some noble Lords have argued that there have been a very low number of complaints about union registers. However, given the limitations of the existing regime that I have just set out, that is not a particularly effective indicator of the overall accuracy of union membership registers. Over the summer we carried out a targeted consultation exercise, which was mentioned by noble Lords opposite. Evidence from that suggests that unions face difficulties in keeping their records updated. The noble Lord, Lord Monks, stated that in his opening speech and I will say more about the consultation on it later. The CIPD commented:

“Unions have stated difficulties at times maintaining the addresses of members”.

A member of the Engineering Employers Federation also commented that trade unions,

“do not have a unified way of tracking membership and it remains difficult for them to do so”.

I believe that most noble Lords opposite acknowledge that.

When these measures were debated in the other place, a number of references were made to the challenge of maintaining registers because of the high degree of turnover in members, which was alluded to this afternoon. Around 2 million people move in and out of union membership a year, which equates to around one in four union members. That means that if a union does not regularly update its register, it could quickly become inaccurate. We propose a modest and proportionate approach to providing greater assurance that registers are as up to date as is reasonably practicable. We are not changing the way in which unions record member details, nor are we changing the existing duty to keep a register. Our focus is on the reporting requirements and effective enforcement. That means greater confidence that union members are receiving all necessary information, including the opportunity to vote on key matters such as a new general secretary. That also means greater confidence that when unions decide that they need to take industrial action—which is entirely their right—those affected know that members have been contacted and given the opportunity to vote. Membership audit certificates will be beneficial to unions, give confidence to individual members and more widely enhance the credibility of their decisions.

Amendment 118B would amend Clause 36 to allow a union to delay submitting a membership audit certificate if it is launching an appeal against it or the certification officer’s acceptance of it. I appreciate that unions will want to ensure that an assurer does not, mistakenly or otherwise, send a qualified certificate to the certification officer without the union knowing about it. I hope that I can provide some reassurance that this amendment is unnecessary. The current drafting of Clause 37 ensures that the assurer will send a copy of the membership audit certificate to the certification officer only,

“after it is provided to the union”.

Therefore the union will have seen the certificate and will have an opportunity to engage with the assurer. If the union is able to demonstrate that the certificate is inaccurate, it should be able to remedy it at that point. Furthermore, unions will themselves appoint their assurers and agree their contractual relationship with them. That gives a union discretion to require an assurer to allow the union to comment on any draft certificate or to discuss concerns before it is issued to the certification officer. However, we believe that it is reasonable to require that qualified certificates are sent to the certification officer as soon as reasonably practicable after they are given to the union so that he can decide what steps to take. We regard this as a necessary part of the assurance process.

If a union is required to appoint an independent assurer to provide a certificate because it has more than 10,000 members, that certificate is the membership audit certificate for the purposes of Clause 36. Clause 36 also sets out what is necessary for unions with 10,000 members or fewer. Those unions will be able to authorise a union officer to sign off the certificate, with a statement that, to the best of their knowledge and belief, the union has complied with its duties under Section 24. As we expect smaller unions to have a less complex register, we think it is reasonable to consider that a union officer will have sufficient familiarity with the content to be able to make such a statement. Amendment 118C seeks to alter Clause 36 so that the assurer would no longer provide the membership audit certificate for unions with more than 10,000 members. That would mean that all unions would provide a self-assurance that they are complying with the statutory obligation under Section 24 of the Trade Union and Labour Relations (Consolidation) Act. This amendment would not give sufficient assurance that unions are maintaining accurate and up-to-date registers and can contact their membership. We already have a regime which relies on individual union members actively checking their membership details.

Nowadays, some unions can be extremely large organisations. For example, as many noble Lords opposite will know, UNISON has 1.3 million members and Unite has 1.5 million. To put that in context, the NHS has around 1.7 million employees. Record-keeping for such large organisations is likely to be complex, and maintenance will need to be ongoing to ensure that the register is up to date, particularly given the high level of reported churn in union membership. Equally, where a union consists of many individual branches with individually held membership information, regular and diligent maintenance of the membership register as a whole will be critical. The noble Lord, Lord Monks, recognised that. We acknowledge that these lists cannot and will not necessarily be 100% accurate. In addition, the larger the organisation, the more probable that communication between the union and its members relies on being written rather than oral. Branch secretaries are unlikely to know all their members and may not even have met some of them. It is therefore appropriate that there is independent assurance for larger unions.

This amendment could also have the unintended consequence of placing additional burdens on larger unions. In defining the independent assurance, we have focused on the assurer awarding the membership audit certificate to larger unions on the basis that they have adequate systems in place to allow them to comply with Section 24. That is because we considered it unduly burdensome and unreasonable to expect the assurance to be an audit of every individual record. The effect of the amendment, however, would be to require these unions to give assurance that they have complied with Section 24 to the best of the union officer’s knowledge and belief. That means that the officer who signs the certificate essentially guarantees, to the best of their knowledge, that the register is accurate and up to date—again, so far as is reasonably practicable. We believe that this could be much more onerous for larger unions than what the Government propose. The annual assurance of unions’ compliance with this duty will demonstrate to members, employers and the public that unions are diligent in their maintenance of such complex records. It will also provide greater confidence that union activity is accountable to the membership.

[Lord Lea of Crondall]

Will the Minister address the point made by many of us about the report of the business advisory committee, which reached the conclusion that the so-called cost-benefit analysis carried out by the department and the impact assessment are not fit for purpose?

[Viscount Younger of Leckie]

I was about to attempt to answer the many questions that were put to me. However, before I come to answer the noble Lord’s question, I wanted to say that the noble Lords, Lord Monks and Lord Beecham, and the noble Baroness, Lady Turner of Camden, basically said that they considered Part 3 to be a politically motivated attack on the unions. I think the noble Lord, Lord Monks, used the expression “vindictive attack”. Perhaps I should not be surprised at their reactions, as we are perhaps being accused of placing our tanks on their lawn. That is just not the case; if anything, it may be only the front of the front wheels. However, this is not intended to make it harder for trade unions to operate. They are membership organisations, and as such have a responsibility to their members to keep their register of members’ names and addresses accurate and up to date so far as is reasonably practical. That general principle is already a statutory obligation, and it is right that the Government should try to ensure that these requirements on unions to fulfil this responsibility are adequate. As I said earlier, trade unions are vital participants in the economy. They work with employers to maximise employee engagement and deliver practical solutions to workplace issues. This is why we currently engage with trade unions on key policy areas, much more widely than we are talking about today, such as employment rights, skills and manufacturing strategy. The Business Secretary regularly meets the general secretary of the Trades Union Congress to discuss current policy matters.

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[Lord Monks]

I thank the Minister for giving way. Is it not quite incredulous to use the cost in that way, breaking it down person by person in that way? We are talking about half a million pounds to be spent on a purpose which he believes gives confidence, assurance and so on but, if there is no real problem in the first place, the whole thing is built on a piece of tissue paper. That 6p becomes even more important to people like me. It is not so much that you have your tanks on our lawn, you have your hand in our pocket.

[Viscount Younger of Leckie]

These are the figures that I have presented, and it is fairly natural to break it down on a per-head basis. I would like to focus on costs. As set out in the impact assessment, I expect the cost to the public purse of implementing the provisions to be around £150,000. The additional responsibilities of the certification officer will mean hiring two to three extra staff members in his office. Some expenses may also be incurred if a complex investigation has to be undertaken, although it is likely that those investigations will be rare. We believe that the changes we are making are relatively modest. The new powers for the certification officer are largely consistent with activities that he undertakes at present. The Government have no plans to make wider changes to the role of the certification officer.

The noble Lord, Lord Monks, raised the issue of, as he put it, state intrusion into unions. That goes back to the first question that I answered for other noble Lords. The Data Protection Act will apply to the certification officer, his inspectors or assurers and they will be required to use any personal data, including data on union members, consistent with the protections that it contains. The Information Commissioner has powers to enforce the data protection principles and can impose substantial fines for some breaches. In addition, there are confidentiality obligations contained in the Bill so that an inspector or assurer can use or disclose information only if they do so consistently with the exercise of functions in relation to the membership register or criminal investigation or proceedings or where consent has been given.

I would like to address two further questions. The noble Lord, Lord Monks, raised the issue of a perceived breach of Articles 8 and 11 of the ECHR and the report of the Political and Constitutional Reform Committee, which I believe I have answered already. The Government have responded to the committee’s report, explaining that these do not breach rights to privacy or freedom of association. That is because there are legal safeguards in place already. The Data Protection Act will continue to apply and the Bill introduces new safeguards as well.

The noble Baroness, Lady Donaghy, challenged the length of consultation. Perhaps I may address this directly. BIS published a discussion paper which received 42 written responses from a range of groups, including trade unions, legal firms, businesses and charities. The Deputy Prime Minister, BIS Ministers and BIS officials have discussed the proposals with the TUC at various points throughout the progress of the Bill to date. The evidence base in the impact assessment is based on what unions have told us and we will continue to listen. The Minister for employment relations has already said in the other place that the Government will consult further on the role of the assurer; for example, we are committed to allowing unions flexibility in the implementation of these new measures while supporting a smooth transition. We are also committed, as I said earlier, to continuing to work with the RPC as well on the evidence base for the impact assessment.

I ask the noble Lord to withdraw his amendment and beg to move that Clause 36 stand part of the Bill.

[Lord Monks]

My Lords, I am grateful to those who have taken part in what has been a wide-ranging debate, at least from this side of the House, which I suppose is only to be expected on this kind of subject. I ask fair-minded Members of the House, of which there are many on all sides, to consider this measure. The case for it is extremely flimsy. Are there not better things for the people from the department and the Minister to be doing? In a period of economic difficulty, the business department is messing about getting extra confidence and extra assurance about union membership records when, over many years, the complaints have been negligible. The existing requirements, which have been put in place during and since Mrs Thatcher’s time, have proved robust and effective. In a sense we are adding something on. As I mentioned before, it is almost like a rite of passage for every Conservative Minister in this place to have at least one kick at the trade union movement. I think that is very much what is happening now.

On this side of the House, we do not intend to press the amendments today but we are giving notice that, after a pause which will take place to enable Part 2 to catch up with Part 3, we will be making the point again on Report. It is an absolute waste of time.

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[Lord Stevenson of Balmacara]

That was interesting. What have we learnt? We have made two rather important steps forward down the path of trying to understand why we are here today and why the Bill is being considered. The first is the Minister’s, I think off-the-cuff, but rather interesting comment, that he resisted the idea that he had planted tanks on our lawn—presumably the trade union lawn—but that the wheels were on the lawn, even if the whole tank was not. I know about tanks, and they can fire very large and rather dangerous weapons; they do not have to be on your lawn to do damage but, if they are on your lawn, it shows real intent. I am afraid that that cat is now out of the bag, so we have that logged.

I thank the noble Lord, Lord Tyler, so much for being present for at least part of the debate, and for being able to enlighten us as to what exactly is going on in the corridors behind the party front that we call the coalition. As my noble friend Lord Whitty said, he has given us the answers to the questions that we have been asking the Minister all evening and to which we have not had responses. I asked 14 questions in my speech and got not a single direct answer to any of them. We now know that this is the set-up for the battle still to come on the question of party funding.

Well, well, well. Here we were thinking that we were talking about important issues such as rights, civil liberties, and so on, when the real debate was about trying to establish a hegemony in terms of party activity that would perpetuate the Conservatives and possibly the Liberal Democrats—I have my doubts about that—against the opposition party as it is presently constituted. Presumably, that gives credibility to the theory that I have heard advanced around the place, which is that this part of the Bill was originally considerably longer and dealt with the question of party funding in relation to the unions, but because of the demarche by the Leader of the Opposition. Mr Edward Miliband, it had to be changed considerably, and all we have left is a warming pan in the political bed that we are addressing. It keeps the issue on the table so that, when and if the parties opposite get their act together, they will move in on party funding in a way that, as we have heard from the noble Lord, Lord Tyler, is so crucial to the future of both his party and, presumably, the Conservatives. Okay, they can change the rules—but at least that is helpful to us in knowing how to address the Bill in more detail when we come back to it on Report.

The amendments tabled in my name and that of my noble friend Lord Monks were difficult for us to frame because, like my noble friends Lord Whitty and Lord Lea, we felt very strongly that what was proposed in Clause 37 was not appropriate and did not satisfy the test of being in response to significant public concern, which we put to the Minister in Clause 36, but which he failed to answer. We felt that it was appropriate in the spirit of this House to table amendments in an attempt to ameliorate some of the harm that would be done otherwise. Our hearts are with clause stand part on Clause 37, and we will consider very deeply over the pause whether to come back to it.

As my noble friend Lord Whitty said, nobody has ever heard of an assurer. It is not a term that appears in any dictionaries that I have consulted. We do not know what it is. It is obviously important that jobs are created in our economy. We are grateful to the Treasury for thinking that they should do this, and the fact that there will be 10, 15, 20 assurers is obviously a great blow in support of the economic policies that the party opposite are trying to put forward. Really, the job is not worth the candle. As my noble friend Lord Whitty said, it would be much better if we were discussing practical things that could address a particular public policy.

It may be that a better self-certification system could be an advantage; it may be, because we do not know what the problem is. That would at least give a frame to the debates we are having. It may be that additional powers for the certification officer would also be of use. These things are matters that we could discuss. Cloaking them, as we have had already in Clause 36 debates, in some spurious idea that there is some concern out there that would be remedied by having an initial arrangement, is simply not sufficient. The Minister and the Government more generally should think again about this whole area.

During the debate, we raised questions about whether the confidentiality of the material made available to the assurer would be sufficiently robust to satisfy the points raised by my noble friend in other parts of the debate about recruitment and retaining members. I am sure that the Minister accepts that, for the confidentiality of trade union registers, these are really important issues. For many employees, their membership, or lack of membership, of a trade union is an extremely private choice, and one which they desire to keep confidential for many legitimate reasons. Indeed, the strength and legitimacy of these concerns was recently underlined by HMRC’s decision to back down in a dispute with Equity about providing personal information relating to its members following a strong response by the union, supported by Liberty, calling in aid Article 11 of the ECHR protections. The knowledge that under the new powers, trade unions could be required to provide their membership register to a Government body for any “good reason” may act as a disincentive for workers to join unions, particularly in light of the current concern over union blacklisting.

As this test is highly subjective, there is the potential for the power to be subject to abuse. For example, the Government may decide they have a good reason beyond that of ensuring public confidence in accurate records—their present argument—for wanting to know whether particular individuals have joined unions, and under proposed wording will be legally entitled to inspect registers under the guise of checking whether the register has been properly updated to include the suspected new members. Can the Minister guarantee that this will not happen? It is evident that the stated aim of ensuring public confidence in the status of union registers is already adequately addressed by the current system, which gives members the power to challenge registers at any time and requires the appointment of independent scrutineers at the key points when ensuring accuracy of the registers is important. Introducing wide-ranging powers of investigation by Government bodies and third parties that do not owe any duty of confidentiality to trade unions, coupled with a second layer of external auditing, is surely an overly intrusive measure, which will have an unwarranted detrimental effect on the members’ trust in the confidentiality of the union registers. These measures clearly go beyond what is necessary and proportionate to achieve any legitimate aim behind the proposals, if indeed there is one at all, and may constitute a breach of Article 11 of the convention.

It should be remembered that the Government are introducing this series of measures at the same time as the full extent of the scandal of blacklisting in the construction industry is gradually coming to light. This is by no means the only industry in which members of a union may wish to keep their membership confidential for fear of being subject to discrimination. On another Bill, the Minister was forthright in his condemnation of blacklisting. Does he not recognise the possibility of double standards here? Will he comment on that?

[Viscount Younger of Leckie]

My Lords, I will now respond to the group of amendments tabled to Clause 37, focusing on the role of the independent assurer, their appointment and removal, and the assurance process. I will deal with the question that the clause stand part of the Bill at the same time.

The Bill will provide greater visible assurance of the maintenance of trade union membership registers to members, employers and the wider public. Clause 37 gives credibility to that assurance by requiring independent scrutiny. Increasingly, a number of unions have become large organisations, serving a membership that frequently covers a variety of employers and workplaces. With this comes administrative complexity, as well as increased public interest in a union’s scope of influence. The nature of union membership data means that they decay easily, as has been mentioned. It is reasonable to think that someone moving house might forget to notify their union, for example. This is recognised in the existing duty for a union to maintain an accurate membership register,

“so far as is reasonably practicable”.

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[Viscount Younger of Leckie]

In answer to the noble Lord’s first question, I went some way forward in attempting to define what the role of the assurer will be. We have made it clear that the assurer is a new role and we should stick with that. The noble Lord’s point was that it should be commuted in with the role of an auditor, but they have distinctly different roles. The best thing is for me to write to the noble Lord to clarify the position of the assurer. I should re-emphasise that the union has a say in choosing the assurer from the approved list, which is originally approved by the Secretary of State. The role is currently being drafted and put together. We have some clear key powers and safeguards that are laid out as part of that role, but it is work in progress and I owe the noble Lord a letter to provide further clarification.

On his second question, I do not wish to go any further—and there is no need to go any further—other than the reply that I have given him. I hope that it has reassured not only the noble Lord but noble Lords opposite in terms of the position.

[Lord Stevenson of Balmacara]

We have had a very clear statement from the noble Lord, Lord Tyler, about what he thought this Bill was about. If the Minister cannot give a specific answer to the question of the noble Lord, Lord Whitty, will he turn to the noble Lord, Lord Tyler, and give him a straight rebuttal of what the noble Lord alleges?

[Viscount Younger of Leckie]

I intend to stick exactly to what I have said.

[Lord Tyler]

I apologise to my noble friend for quoting at such length the comments in the summer of the leader of the Labour Party. The Labour Party and its leader will benefit considerably if this part of the Bill, in whatever form, is enacted as there will then be a much more secure and robust form of record of all the membership of the unions. That is the point I was making.

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[Viscount Younger of Leckie]

My Lords, at the outset I want to address the issue of blacklisting that was raised by the noble Lords, Lord Whitty and Lord McAvoy, as we take any allegations of blacklisting very seriously. It is unlawful under the Trade Union and Labour Relations (Consolidation) Act 1992 to refuse to employ a person because they are a member or not a member of a trade union or because they refuse to join or leave a trade union. It is equally unlawful for an agency to refuse employment services on those grounds.

In 2010, in response to the Consulting Association blacklist uncovered in 2009, the Government strengthened anti-blacklisting legislation and increased the penalties for unlawful processing of data. Data controllers can now be fined up to £500,000 for serious offences. Despite several allegations of new evidence of blacklisting, to date we have seen no evidence of this practice recurring. As noble Lords will know, the Scottish Affairs Select Committee and the Information Commissioner are both currently investigating the potential for ongoing offences, and the Government continue to take a close interest in this issue. I thank noble Lords for raising this particular point.

Let me now turn to the individual amendments that have been proposed. Amendment 144 seems intended to prevent the certification officer and any authorised person from being able to require any branch or section of a trade union from supplying relevant documents. Even if the amendment had the desired effect, I do not believe such a change would be necessary or desirable. The phrase,

“a trade union, or a branch or section of a trade union”,

is used elsewhere in the Trade Union and Labour Relations (Consolidation) Act 1992, for example in the context of financial investigations. I would imagine that a union would want the certification officer to make every effort possible to obtain relevant documents. If its record keeping is decentralised, a union’s head office may not know if there is a problem.

Amendments 145, 146, 148 and 149 are probing the protections for unions with regard to the new investigatory powers of the certification officer and any inspectors he may appoint. These amendments all seek to restrict access to a union’s register of member names and addresses. Clause 38 gives the certification officer the power to require a union to produce relevant documents where he believes there is good reason to do so. If the certification officer has appointed an inspector to investigate, the inspector can also require documents relevant to the investigation. In both cases, “relevant documents” is defined as including a union’s register of members’ names and addresses.

Noble Lords are proposing instead that “relevant documents” should “not normally include” the register. They go on to propose that production of the register may be required by the certification officer only where the High Court has concluded there has been a criminal offence, a breach of human rights, or substantial danger or damage to third parties or to national security. The noble Lords also state that the registers shall not be available to third parties. This represents a significant set of constraints. I fully understand the concerns driving the amendments. Sensitive data on who is a member of a trade union must not be treated lightly, but I hope that I can offer reassurance about the legislative protections already in place, as well as those included in the Bill.

In the first place, however, I need to be clear that access to the register by the certification officer or his inspector is an essential requirement of providing assurance. Establishing compliance with the legislation would be impossible without either the certification officer or the inspector being able to exercise a right to access the register itself. Without this, they are wholly reliant on what the union tells them. This is inadequate in circumstances where there is reason to believe there is a problem. Access to union membership data by third parties is something that already occurs. Both the certification officer and independent scrutineers, who are responsible for ensuring the propriety of ballot processes, often need access to membership data, but there is no suggestion this has led to any misuse.

Let me explain what protections are in place. The certification officer is an independent officeholder. He is also under a duty to exercise his powers consistent with rights conferred by the European Convention on Human Rights, including the rights to privacy and freedom of association. The certification officer is well placed to deal with sensitive data and there have been no problems in the history of the office of which we are aware. The Data Protection Act also applies to the certification officer and his inspectors so that they will be required to use any personal data, including data on union members, consistently with the protections it contains. The Information Commissioner has powers to enforce the data protection principles and can impose substantial fines for some breaches.

Amendments 147 and 150 would specifically allow the certification officer or his inspector to require names, dates of birth and national insurance numbers held by the employer to allow for cross-referencing to complete an investigation. It is not clear why the certification officer would need to request this information or why the inspector would require it. None of the comments we received during our targeted consultation over the summer suggested that this information was necessary. In practice, the duties under Section 24 of the 1992 Act do not require the union to keep members’ dates of birth or, indeed, national insurance numbers. More importantly, this could have the unintended consequence of widening the scope of sensitive information handled by the certification officer and the inspector for no particular reason. There is no reason why they should automatically have access to dates of birth and national insurance numbers during an investigation. Nor is there any reason why they should be able to require it from an employer.

Amendments 151 and 153 share a common goal of ensuring that there are appropriate protections to ensure that the inspector handles sensitive membership data properly. I will therefore speak to them together. I would like to reassure noble Lords that there are already strong safeguards in place to ensure that union membership data will not be compromised by an inspector’s investigation. The certification officer will use his discretion to appoint an inspector—as he does at the moment for inspectors appointed to investigate a union’s financial affairs. It will be for the certification officer to ensure that he appoints someone capable of fulfilling their responsibilities. The inspector will owe a duty of confidentiality to the certification officer. Extending that duty of confidentiality to the trade union could have the unintended consequence of interfering with the independence of the investigation.

Should the inspector breach the duty of confidentiality owed to the certification officer, it will be for the certification officer to decide how to deal with this. The officer will want to consider the circumstances and severity of the breach to decide what is appropriate. For example, if the inspector is a member of the certification officer’s staff—as they could be—the certification officer will have a range of options, from retraining to dismissal.

A third party appointed as an inspector is likely to be someone in a professional firm. It would seem unnecessarily restrictive to require that the certification officer could never appoint that firm again, no matter what happened to the individual concerned.

[Lord Lea of Crondall]

Will the Minister respond to what many on this side have been driving at? Both in the retail sector and the construction industry there is widespread use of casual and agency workers. Obviously, the employer knows who the workers are. Unions, in recruiting members to represent them, have great difficulty in getting data on who is employed, who is on sick leave and so on, so the word “reasonable”, which we understand to be used for the new union audits, should be constructed on the premise that there must be a level playing field.

[Viscount Younger of Leckie]

I assume that that was a specific question relating to contractors. I hope I have got that right. If the noble Lord’s question was broader than that, I pledge to write to him to clarify the position.

It would seem unnecessarily restrictive to require that the certification officer could never appoint that firm again, no matter what happened to the individual concerned.

In addition, if the appointed inspector—or any other individual, for that matter—has breached data protection rules by mishandling personal data, the union may apply to the Information Commissioner, who enforces the Data Protection Act. The Information Commissioner has a range of powers at his disposal, including imposing a fine of up to £500,000. I therefore believe that the amendment is unnecessary.

Amendment 152 would change Clause 38 so that the inspector appointed by the certification officer to investigate discrepancies would also have to take “all steps necessary” to protect a member’s name and address, instead of “all reasonable steps”. I find it difficult to see what the amendment achieves in practice. The assumption appears to be that there are steps that might be necessary but are in practice unreasonable. I consider “all reasonable steps” to be sufficient.

I hope that the noble Lord will feel able to withdraw his amendment.