Relevant documents: 15th and 20th Reports from the Delegated Powers Committee, 1st Report from the Joint Committee on Human Rights
Clause 4: Information to be included on voting paper
Moved by Lord Collins of Highbury
23: Clause 4, page 2, line 32, leave out from “must” to end of line 34 and insert “state the trade dispute to which the proposed industrial action relates”
My Lords, the amendments in this group were due to be debated on Monday night. I recognise that we have quite a few amendments and clauses to deal with in this composite group. The Minister has said that she is in listening mode. These amendments are designed to probe and query the reasons and justifications for these measures. Clauses 4 and 5 are definitely not in the Conservative Party manifesto, and it is arguable that Clause 6 is. We look forward to what the Minister has to say and to her answers to our questions.
As I have said in debates on other clauses, the Bill does very little for trade union members or to promote good industrial relations. What is does is place greater regulatory burdens on unions and hinder the speedy and amicable settlement of disputes. Today, we seek evidence to justify change and of whether alternatives were considered. Our concerns about these clauses are that the evidence on the problems is non-existent and the rationale for legislative measures does not stack up. We would also like the Government to be as expansive as they can be on what they intend to include in, and exclude from, secondary legislation. The Minister will need to explain the Government’s stated expectation of these measures and the millions of pounds of additional cost to trade union members and trade unions.
The impact assessment suggests that these measures and Clauses 7 and 8 are expected to reduce strikes by 5% and contribute £1.2 million to UK output. In a series of measures that are more likely to prolong disputes, that a pretty strong claim. Will the Minister outline how this will make such a difference and whether the measures are proportionate?
In relation to Clause 4, trade unions need to be clear about what they are asking their members to vote for so that they can make a fully informed decision, but there is no evidence that they are not clear under the current arrangements, or a jot of evidence that members or employers feel unable to grasp the issue in the ballot. Unions are required to ask members what type of industrial action they are willing to take part in; for example, strike action, action short of a strike, a work to rule and so on. The employer receives a copy of the voting paper.
Some employers to try to frustrate the ballot by legal challenge and injunctions and with threats and costs. Some firms can be very inventive, creating a web of different companies to demonstrate that the complex intercompany arrangements mean that multiple ballots need to take place. The management is not obliged to provide any data to help clarify the company delineations and the members concerned. That speaks to one of the problems with the Bill, which is about balance in measures on management and its responsibilities and requirements. When we tried to rebalance these measures, we were told they were out of scope and not to do with trade unions. Is this view shared by the Minister?
In another place, Nick Boles’s entire evidence base for Clause 4 was that he had two such ballots and did not understand what they meant, and that he felt the use of the words “redundancy” and “pay” was insufficient. This shows absolutely no understanding of the context in which staff are notified of redundancies, in keeping with statute, or how pay is negotiated. I know that the Minister has practical experience of this, and I hope that she can clarify his words today. I suspect that there were fewer unionised staff in Policy Exchange than there are in Tesco, which has a fully unionised and recognised workforce.
The crux of this debate is what is meant by “reasonable detail”. Will the Minister please provide a few examples? What specifically needs to be given on the date? What would be acceptable and what would be unacceptable? Will the Minister consider that very specific detail may be against the management’s wishes? In those circumstances, would it still want the detail specified?
Our amendments in this group seek to rebalance the Bill. Perhaps I can set out how they would work in relation to these clauses. Amendment 23 suggests an alternative, practicable proposal that voting papers should simply outline the trade dispute to which the proposed industrial action relates. In the same vein, Amendment 24 adds that the voting paper should include a description of the trade dispute. These may be minor probing amendments, but what, in the Minister’s opinion, would be an ideal ballot paper? Would it be a 200-word essay, or would it be so complex, with so much information, that no one would be able to make a sensible decision?
Unions are already required to ask members on the ballot paper about the type of industrial action they are willing to take—that is, strike action or action short of a strike. Now the ballot paper must also include a statement alerting members that, if they take industrial action, it may breach their contract of employment, reminding them that they have no protection from dismissal if their action is unofficial; their right to such protection is limited to official action. This seems an appropriate amount of information and in no way misleads workers or members as to the purposes of the ballot, as the Minister will no doubt argue.
Amendments 25 and 26 delete new subsections (2D) and (2E) on the basis that they are too prescriptive and add next to nothing to the process—certainly not to the value of the content of the voting paper; in fact, they will serve to frustrate constructive employer-union negotiations. For example, in some disputes it would be difficult for the union to predict how employers would respond to strike action and how quickly they would be willing to negotiate a settlement. It would therefore be very difficult for unions to predict when they would plan industrial action and the form the action should take, making new subsections (2C) and (2D) futile.
Amendment 27 ensures that unions would not be required to comply with the new complex rules set out in the clause if they reach an agreement with the employer about the information that should be included on the voting paper. Again, that is a sensible way to find amicable settlements, with unions and employers agreeing together without interference from the state.
Amendment 28 establishes an alternative procedure whereby unions would be required to submit a copy of the voting paper to the scrutineer, who will evaluate the text, so avoiding the potential for legal challenge.
This would mean an independent assessment of the content of the voting paper so that employers were not able to initiate, as I say, vexatious litigation.
Clause 4, on the information to be sent to members about the result of a ballot, will mean that unions are required to provide more detailed information on the outcome. This represents an additional burden that would particularly impact on smaller unions. Under Section 231 of the 1992 Act, trade unions are already required to inform members and relevant employers about the results. Unions have to follow quite a complex process and there have already been a number of challenges to that process. Case law is being established.
We also support Amendments 29, 30 and 31, tabled by the noble Lord, Lord Stoneham. They would remove the requirement on unions to inform members and employers of whether the 50% turnout and 40% threshold has been met. Amendment 32 proposes that the unions should be required to take such steps as are reasonably necessary to ensure that all members who are entitled to vote in a ballot are informed of the result of the ballot. This would mean that unions would be expected to use the usual methods of communication, including websites, newsletters, notice boards, emails and so on.
Clause 5 appears to be another pointless measure which serves to add to the burden of unions, with little indication of what purpose or value it will generate. We have given notice of our intention to oppose Clause 6 on the provision of information to the Certification Officer, as we believe that this measure needs to be considered in tandem with the latest section on the massive extension of the role of the Certification Officer, a role that is turning the officer into a regulator, an investigator, judge and jury, shifting it away from serving and protecting the interests of members and towards employers and campaign groups at the direct expense of trade union members. Nick Boles rather gave the game away in Committee in the other place when he made the point that the Certification Officer was now going to play a role in industrial action. It would be better to defer this matter until it can be properly considered later in the Bill. Given the huge concerns, including profound human rights objections, the Government will need to do some persuading about the nature of the Certification Officer, what data are collected and how they are used.
Detailed examination of the impact assessment does not provide an evidence base for either the scale of the problem or the scope of the solution. The impact assessment is wrong on cost and on behaviour. The measures for regulations are piling up and there is no evaluation of the existing law or of the flaws or effectiveness of the arrangements. If it ain’t broke, why fix it? Is this another round of gesture politics? It is clear that these measures will add cost burdens and bring about a huge extension of the scope of legal challenges, as well as the creation of open-ended opportunities to frustrate legitimate trade union activity.
Underlying that is a strong view that the Bill is flawed and that it does not account for management as a significant actor in the process; it only assists and encourages backward and poor management practices, which are a major and continuing source of our productivity and competitiveness gap with our major competitor countries. I hope our concerns are similarly shared by others around the Committee.
My Lords, if this amendment is agreed to, I cannot call Amendment 24 by reason of pre-emption.
My Lords, perhaps I may add one point to the excellent summary given by my noble friend Lord Collins. I would like to make an analogy with the other big thing that is happening in our lives at the moment—the EU referendum. You have to think about what you want to get out of a negotiation and consider whether it is conducive to getting an acceptable outcome if you spell out every possible thing that you might want. It seems to me that there is a risk in the clause that the Government want to include because the unions would be almost obliged to put everything and the kitchen sink in the list of demands. This could be counterproductive and make it much more difficult for unions and employers to resolve disputes. Why? Because they might find it difficult to convince members that they should accept a settlement that does not deal with all the issues listed in the ballot paper. In some disputes, it will be difficult for the union to predict how employers will respond and how they will wish to negotiate the settlement.
It would be wise, therefore, for the Minister, in her response, perhaps to acknowledge some degree of validity in the idea that it is not always a good thing to put too much information in the question of dispute.
“The voting paper must include a reasonably detailed indication of the matter or matters in issue in the trade dispute to which the proposed industrial action relates”.
One might be tempted to ask what on earth that means. Evidence given to the Bill Committee in another place from the Chartered Institute of Personnel and Development and others was critical of these measures on the grounds that they will be counterproductive and likely to cause worse industrial relations. Lawyers for both the trade union side and employers were worried about the litigation that would ensue.
What this wording means, as the noble Lord, Lord Lea of Crondall, set out, is that unions will seek to draw the nature of the dispute as widely as possible on the ballot paper to protect themselves from later legal challenge. By putting “the kitchen sink” on the ballot paper, they will, in the first place, probably confuse the membership more, which is the opposite of what this clause purports to—
The most likely thing is that the clause will have the opposite effect to what is proposed by the Government as their motivation—although, I must say, some of us rather doubt their motivation at this stage. It would be much harder, as has been pointed out, for trade unions to settle disputes once they have put all these issues on the ballot paper because their members may, understandably, object to having voted in favour of action and the dispute being settled before all the issues on that ballot paper are achieved.
“The relevant required question …. should be simply expressed”.
It goes on to say that nothing which appears on the voting paper should be presented in such a way as to encourage a voter to answer one way rather than another. So I have some questions for the Minister. How does she see the requirement to be “reasonably detailed” fitting in with the requirement that any question is “simply expressed”? Does she not think it likely that a reasonably detailed explanation is more likely to be open to interpretation as encouraging a voter to vote one way or another? Given the Government’s concern that people taking part in a ballot should not be misled as to what they are voting for, does she perhaps see opportunities to extend this principle? Does she think it would be better if the general election ballot had provided a reasonable description of what the Conservative Party had in store for voters? Does she think that voters in the general election could have been told that the first actions of the Conservative Government, on winning an overall majority, would be to take thousands of pounds off millions of hard-pressed working people? That certainly came as a surprise to millions of those voters after the election. Of course she does not. I hear someone referring to the manifesto. The Minister will know that there is already provision for Members to be given information about the nature of a ballot. Again, the BIS code of practice states that unions should give information to their members, including the background to the ballot, the issues to which the dispute relates, and the nature and timing of industrial action that the union proposes to organise. Does the Minister not think that the trade unionists are capable of reading this information and deciding how to vote?
It is not just trades unionists and, lawyers and professional bodies which think this clause is a recipe for litigation. Conservative advisers on employment relations share this view also. Tom Flanagan, a former adviser to the Conservative Party on employment law, who provided evidence to the Bill Committee in another place, also agrees. He helped to produce a 2008 paper for the Conservative Party which set out most of the changes relating to ballots which are in the Trade Union Bill.
In evidence to the Bill Committee in another place, Tom Flanagan said that the trade union changes that he had proposed were unable to proceed in the last Government, largely because of opposition from the Liberal Democrats. He is certainly right about that.
While praising many of the provisions of the Bill, he went on to say that a reasonably detailed indication of the matter or matters in issue,
“is likely to be a step too far, in my view, and risks more legal challenges in endless satellite litigation”.
If the Government will not listen to us on this matter, will they perhaps listen to him and accept Amendment 23?
The measures set out in Clause 4 in particular demonstrate everything that is wrong with this Bill. They are unnecessary. The Government have produced no evidence of a compelling case. The provisions are a politically motivated attempt to tie the trades unions up in red tape. They are poorly drafted and will be a lawyers’ paradise. They will ensure that disputes are drawn as widely as possible and that they are as hard to resolve as imaginable. They will be entirely counter- productive to what I hope all Members of this House want to see—good industrial relations in this country. For those reasons I hope that the Minister will consider very carefully the amendments before us.
My Lords, the other Liberal Democrat spokesman wants to come in, so I will be brief. I did not realise that she was going to stand at that moment. I apologise.
I very much support and endorse the wise words of the noble Lord, Lord Collins, in his cluster of amendments, and the equally sagacious contribution from the noble Lord, Lord Oates, on these matters. Clause 4 is one of the areas where even the most objective supporter of the need for modernisation of procedures between trades unions and employers would say that there appears to be a dark intent behind them. It would cause unnecessary difficulties for unions in the normal pursuance of their functioning, including when trade disputes arise, allowing an unfair advantage to be built in on the employers’ side. Yet, while a large number of employers remain silent, the ones who have been consulted express grave reservations about this Bill.
I always like to assume good intentions on the part of any Government, so I assume that this Bill had been drafted by the normal team of parliamentary draftsmen on behalf of the Government, therefore within an objective capsule of content. But the tone and content are repeatedly suggestive of outside agencies, including maybe the IoD—I apologise in advance if I am getting that wrong and being unfair—and more likely the Institute of Economic Affairs and, even more sinister, the Centre for Policy Studies, giving their suggestions and ideas about these matters. A modest number of rather right-wing oriented business leaders in this country—most business leaders are not right wing, left wing or whatever, just sensible and pragmatic—who are more myopic about the subtleties of modern industrial relations and the good balance between employers and unions have also had their contributions registered and put into the machine and been redrafted by professional draftsmen.
In moral and practical terms, a Government elected by 24% of the electorate in the last general election should not be allowed to put such provocative ideas into Clause 4 and other clauses that we will debate after this. I hope that the Minister will once again think very carefully about the implications of pressing ahead with a poorly drafted, provocative and narrow-minded text, which will surely cause severe problems in industrial relations if it is allowed to pass. If it goes back to the other place I hope that they will also have second thoughts and that this will be carefully considered, not least by Members on the government side. I keep my promise now and allow the Lib Dem spokesman to speak.
I am grateful. My Lords, I do not want to detain the House because there is a lot to get through, but I want to make a very brief general point on Clauses 4 and 5. I am sure that every noble Lord would agree that we want legislation that will work. Our concern is that it should not tie either side up in legal knots on the information that they have to include on the ballot paper, or on the way trade unions communicate the result of the ballot.
Our concern is that the specificity of the requirements may lead to some kind of legal challenge by the employer or others, as my noble friend Lord Oates said. Surely we should have in legislation what any reasonable trade union member would expect to be told and what a reasonable trade union would expect to tell its members. That is why my Amendments 29 to 31 would enable the concept of “reasonable belief” to enter the equation, instead of specific legal questions, the contravention of which might result in a challenge. We also support Labour’s Amendment 32, which would inject that tone of reasonableness into the whole process of reporting the result of a ballot to union members.
My Lords, the noble Baroness, Lady Burt, just said that the legislation should contain what a reasonable trade unionist would expect to see on the ballot paper. For my part, I am having difficulty understanding the criticisms that have been made of Clause 4. There is some substance to them, but the clause is not “provocative and narrow-minded”, as the noble Lord, Lord Dykes, suggested. Surely, if one is to have a ballot that will be of vital legal significance in identifying whether the union and its members will be immune from legal action, it is perfectly reasonable to provide that the voting paper must give those who are voting basic information about what they are voting for.
Three items are mentioned in Clause 4. First, the voting paper must include an indication,
“of the matter or matters in issue in the trade dispute to which the proposed industrial action relates”.
That seems to me perfectly reasonable. The criticism may be justified in the words “reasonably detailed”. I understand the criticism of those words because there is a danger that they may lead to legal difficulties. If those words are removed, what is the objection to the person voting being told expressly and clearly the matters in dispute that he or she is being asked to vote on?
Secondly, where the voting paper,
“contains a question about taking part in industrial action short of a strike, the type or types of industrial action must be specified”.
What is wrong with that? It is a perfectly reasonable basic requirement. Thirdly,
“the voting paper must indicate the period or periods within which the industrial action or … each type of industrial action is expected to take place”.
Again, the reasonable trade unionist who is being asked to vote surely needs to know the length of time for which the industrial action is going to take place. Concerns have been expressed that these provisions may lead the trade union to put in, as was said, the kitchen sink. I should have thought that any trade union that did that would be very badly advised indeed, because it would be likely to confuse the members and far less likely to satisfy the statutory thresholds.
I am particularly puzzled by Amendment 27, which would provide that these new provisions,
“do not apply to any ballot where there is an agreement between the employer and trade union”.
Surely that leaves out the interests of the employee. There may well be an agreement between the employer and trade union, but it may not work to the benefit of individual employees. Therefore, I think there is some force in some of the criticism, particularly of the language in new subsection (2B)—“reasonably detailed” —but the criticisms are very substantially overblown.
May I ask the noble Lord about that “reasonably detailed”? My noble friend referred to the kitchen sink, but a pay claim may have several items within it, perhaps as many as 20, some more important to some groups within a firm than to others. There is a balance to be struck. The trade union balances that in negotiations and often has to choose, but of course the trade union is representative of those employees; it is not an outside body. At the end of the day, it is those employees who have the vote.
My problem with “reasonably detailed” is what you leave in and what you leave out. When I was a trade union official and we faced the possibility of a legal case—the possibility that we would be challenged—the tendency was to say, “Let’s put in the kitchen sink to make sure that we do not get it wrong”.
That is precisely why I expressed my understanding and support for the suggestion that the words “reasonably detailed” are unnecessary and may well be counterproductive. I see the force of that criticism, but only that criticism. Let me add that the noble Lord, Lord Lea, was concerned that this would require the trade union to put in its demands; it would not. What it requires is that the voting paper must indicate the matter or matters at issue. If we take out “reasonably detailed”, I cannot see the objection to a ballot paper indicating—not setting out in detail, but indicating—the matter or matters in dispute. That seems perfectly reasonable.
My Lords, I remind the House what unions are already required to do. They must ask members, on the ballot paper, about the type of industrial action that they are to take, whether it is a strike, an overtime ban or whatever. That has to be specified on the paper at the moment. The ballot paper must also indicate that there may be a breach of their employment contract. In my experience, all ballot papers have a statement of what the dispute is about, what people are voting about. They do not just say, “Will you go on strike?” out of the blue. In the postal ballot there is a statement saying what the dispute is about. My question to the Minister is: why do we need this? What is the problem that she is trying to solve?
I know what the effect will be. My learned friends—I exclude the noble Lord, Lord Pannick, from that description at the moment—will be poring over every ballot paper to see if it ticks all the boxes that the Government are trying to introduce. There will be an industrial dispute of some kind and disputes about the ballot paper. Members will say, “I don’t like that”, or employers will. I am not sure if it is a kitchen sink, Pandora’s box, or what the metaphor is, but it is a totally unnecessary bit of red tape.
My Lords, these clauses are about making sure that union members have clearer information on the voting paper about what action is proposed, when and why. They also ensure that members, and the certification officer, know about the outcome of the ballot. The increased clarity is an important part of our package of trade union reforms. In some sense having the right information defines everything we are about, and I think there is some common ground on this issue.I am grateful to the Lord Speaker for clarifying which amendments we are addressing. I will try to answer the points made amendment by amendment.
Noble Lords expressed concern about the new information that the Bill requires a trade union to provide on the voting paper. They want to keep the status quo, or at least reduce the amount of information that the Bill requires. There is also a worry about the risk to a union of a legal challenge for failing to comply with the requirements, and about increasing burdens and bureaucracy on trade unions. We do need some change because the law does not provide enough transparency.
In response to the noble Lords, Lord Lea of Crondall and Lord Oates, I say that it is more useful, for both the union members and the employer, if the voting paper is clear and transparent about what issues are in dispute. This will aid negotiations as they will be able to focus on exactly which aspects of—for example—pay remain unresolved. I agree with the noble Lord, Lord Pannick, on this. The aim is to provide more certainty about the issues in dispute, thereby reducing the risk of legal challenge to the validity of the mandate, which would be costly for both parties, as other noble Lords have hinted.
We used the words “reasonably detailed indication” of the matter or matters at issue in the trade dispute, because if there is any more detail that a union could reasonably give on the voting paper then it has not complied with the requirement.
I thank my noble friend. That is certainly something we can look at.
I was asked for an example. In a trade dispute about pay, it would be reasonable to expect the union to state which year’s pay offer is in dispute, and which employees are covered by the offer. This may be done in some cases but in others it may not. I am concerned about a trade union simply stating the trade dispute, as proposed in Amendments 23 and 24. This would not ensure that the voting paper was sufficiently clear. Members need to know exactly what they are voting for—if there is a strike they lose money.
Is it not a reality that any ballot paper would have accompanying documents setting out the case for the vote. Surely that is where the detail should be, not on the ballot paper.
We do need clarity. I have listened to what has been said in relation to the reasonably detailed indication. We have heard from the noble Lords, Lord Collins, Lord Oates and Lord Pannick, about what that might mean in practice. I would like to reflect on whether we have got that right. Probably what everybody wants is a balance, so that there is sufficient detail and members can make an informed decision without unnecessary burdens being put on unions by asking them to include a long and detailed account of the trade dispute.
I turn to Amendment 25. Terms such as “action short of a strike” are too wide. The type of industrial action proposed will depend on the circumstances of each dispute and the industry concerned. It is important that members know which type they are voting on because of the different impacts on people’s lives. I reassure noble Lords that we have considered that there might be a degree of uncertainty when a union is drawing up its plans about what action it might subsequently take. But it must surely have in mind a plan for such action. All we are asking is that that plan is made available to members.
I am concerned that Amendment 26 would mean that there was no requirement to provide any information on the voting paper about the timing of industrial action, which is a key point. We want to avoid the situation where a member might have made a different decision had he or she realised when the strike would take place. For example, Unite conducted a ballot where British Airways staff voted to strike, but it is not clear that they would have supported the strike action had they known they would have been called out for 12 days over Christmas. We want to avoid that sort of thing.
I will be brief. Coming back to the point that the noble Lord, Lord Stoneham, made earlier, and allowing for the fact that the example the Minister gave about the airline dispute over Christmas was a very esoteric example and not a generalised one, why can the Government not be more benevolent and consider that in the background and the immediate run-up to the ballot being launched there would have been plenty of explanation in the union’s communications to its paid-up members? Presumably, the intentions of the trade union and details of the dispute would have been reported in the press so that the public would be well-informed as well. Everybody would know about it. Why does the ballot paper itself have to be sullied with further extraneous detail of that kind?
My Lords, I am afraid I do not agree with the noble Lord. Having the necessary information on the ballot paper is important. You cannot always rely on the press to give you all the information you need to know.
The Minister has referred to a specific case. One of the problems with the impact assessment is that it does not detail what the impact of these proposals will be, particularly in the private sector. The problem with the measures being proposed is that they seem to stem from specific actions in the public sector. But if she does take the British Airways situation, has she assessed what the unintended consequences could be of a union specifying such things in the ballot? She has failed to mention that in the private sector the vast majority of industrial action ballots result in speedy negotiations and a speedy settlement. The problem with putting this information on the ballot paper is that it becomes so specific and public before those speedy negotiations can take place.
I wonder what British Airways would think of the Minister’s proposal that Unite puts on an industrial action ballot, “We will close British Airways down over Christmas”. I wonder what British Airways would say to the Minister—because I know what it would think. Even before the result of the ballot is known and even before there is any suggestion of industrial action, most people will be cancelling their bookings, costing British Airways a substantial sum of money. Is that what she is proposing?
I think that the noble Lord makes the argument for the Bill: trying to bring in a greater degree of clarity. I have given an example, which I think is a good one. Perhaps I might proceed.
The approach proposed in Amendment 27, which puzzled the noble Lord, Lord Pannick, requires agreement with the employer and could result in too much time and effort being spent on trying to agree the wording on the voting paper, instead of trying to resolve the dispute. I think that this is common ground. Trade unions will generally want to maximise the possibility of achieving the proposed thresholds and to have clarity and certainty about who is entitled to vote, which is the subject of Amendments 29 and 30. I reassure noble Lords that the law already protects trade unions against challenge over insignificant breaches of the balloting rules.
For example, many of the provisions in the Trade Union and Labour Relations (Consolidation) Act 1992 on balloting are subject to a “reasonableness” requirement. A union cannot be held to account for trifling errors when it conducts a ballot. Sections 226A and 234A require that the lists and figures supplied in the ballot and strike notices must be,
“as accurate as is reasonably practicable in the light of the information in the possession of the union at the time when it complies”.
Section 227 confers entitlement to vote,
“to all the members … who it is reasonable at the time of the ballot for the union to believe will be induced”,
In addition, Section 232B provides that a union still complies with the requirements on balloting, even if it has made some error in the process, if,
“the failure is accidental and on a scale which is unlikely to affect the result”.
There is also the case of RMT v Serco, which established the margin of error on which trade unions can rely, thereby adding clarity and certainty around the statutory reasonableness requirement. All of this means that the obligations are not intended to be unduly onerous for unions.
Amendments 29 and 30 in the name of the noble Lord, Lord Stoneham, go further by allowing the union to import a “reasonable belief” into what is a trade dispute, so removing the current objective test to determine whether a matter constitutes a trade dispute. This would allow the issue to be opened up to uncertainty, according to what the union believed.
Amendment 31 addresses concerns about unions complying with the requirements to ballot those who are entitled to vote. I draw noble Lords’ attention to the fact that, in future, unions will have more certainty that those who are entitled to vote receive a postal ballot paper. This is because the previous Government introduced a requirement for unions to submit membership audit certificates. This enables unions to demonstrate that they are complying with their duty to keep membership records accurate and up-to-date.
Amendment 32 is duplicative. Section 231 of the 1992 Act already states:
“As soon as is reasonably practicable after the holding of the ballot, the trade union shall take such steps as are reasonably necessary to ensure that all persons entitled to vote”,
are told the result of the ballot. Members and employers will therefore know the number of votes cast and the numbers of individuals answering yes and no. It would not be fair to leave them to work out whether the thresholds were met, especially as the union will have calculated the result in order to know whether it has secured a mandate.
On Clause 6, I agree that it is not sensible under this amendment to go into too much detail on the Certification Officer, since we shall come to that on day 4. But this clause is important because timely provision of good quality information is a key component of ensuring effective regulation and it gives confidence to those affected by disputes. The need to provide such confidence is why annual returns—
I shall look at what the noble Lord has said. The way one in, two out works is that where a new burden is brought in, equivalent burdens in pounds million are reduced. Obviously we produced an impact assessment for this and we shall be ensuring that when regulations are totted up, double the resulting amount is deregulated elsewhere. Under the system, one Bill is not linked with another but the totals are totted up. The noble Lord makes a good point about the importance of deregulation—and impact assessments are important for the same reason.
I have pretty well finished on this point, but the noble Lord, Lord Collins, asked about the secondary legislation that the Government would be making in relation to these clauses. There is no power to make secondary legislation in respect of Clauses 4 to 8. The provisions are set out in the Bill, which is why it was right to take the trouble to spend a little time setting out what was intended.
We have had a constructive discussion. There is a little further work in terms of scrutiny on this particular section. I am grateful for the points that were made, particularly on the issue of reasonably detailed indication. I should like to reflect further and in the mean time I ask the noble Lord to withdraw the amendment.
I appreciate the Minister’s comments. It is important that she reflects fully on all aspects of this because the unintended consequences could be far worse than the Government expect. The impact assessment is incredibly poor in terms of assessing what effect these proposals could have, particularly on the private sector. But in the light of the Minister’s comments, I beg leave to withdraw the amendment.
Amendment 23 withdrawn.
Amendments 24 to 28 not moved.
Clause 4 agreed.
Clause 5: Information to members etc about result of ballot
Amendments 29 to 32 not moved.
Clause 5 agreed.
Clause 6 agreed.
Clause 7: Two weeks’ notice to be given to employers of industrial action
Moved by Baroness Donaghy
33: Clause 7, page 4, line 4, at end insert—
“( ) At the end of section 234A(4)(b) of the 1992 Act (notice to employers of industrial action) insert—
“, unless the employer and union have reached an agreement in respect of the industrial action, in which case the appropriate period is the period ending with the seventh day before the day, or before the first of the days, specified in the relevant notice.””
My Lords, one of the difficulties about moving an amendment on employment relations in a Bill which some of us consider is not about employment relations is finding a context where employer and employee have a mutual relationship which works most of the time but occasionally breaks down—and the extent to which the state intends to help or hinder on those occasions.
A senior civil servant, who shall be nameless, was once asked, “Why is there always an anti-trade union Bill when the Conservative Party wins an election?”. The civil servant replied: “There are two reasons. First, it will delight the local Conservative associations and, secondly, it does not cost anything”—unlike building a motorway or lowering taxes. My Amendment 33 does not cost anything either. Its purpose is to highlight the importance of the relationship between the employer and the trade union and its members, and to recognise the benefits of mutuality in the timing of industrial action. Its objective is to give some flexibility in what can be a very fraught atmosphere.
The existing requirement of seven days’ notice of industrial action once a ballot mandate is achieved is not, in itself, a problem. It is extremely rare for employment relations to be so bad that the lines of communication between management and trade union are completely severed, and notice of intention to hold the ballot will already have been given. During the ballot period, the union will campaign for a successful outcome, and management will inform employees why industrial action is unnecessary. The seven days’ notice only kicks in when the ballot is successful from the trade union angle; it is not relevant if the ballot fails. The employer and union will then know where they stand. If the intention is to hold, say, a one-day demonstrative strike, it is in the interests of the employer to be allowed to agree the timing of the strike with the union—not because it will agree with the strike, but because it recognises the reality of the situation and wants to lance the boil as soon as possible. I am not arguing that two weeks’ notice, in isolation, is a bad thing, but in the context of the total package of this Bill, it is patronising. It is also damaging to take certain judgments away from management and unions in this situation.
The impact assessment talks about “contingency arrangements” and then goes on about,
“more cost effective contingency arrangements”.
I would be interested to know what these are and what the difference is between them. For instance, is it hiring agency staff to cover which, of course, is more expensive? I do not believe any respectable agency will get involved with this anyway. Will it be hiring people at 4 am from the car park near B&Q on the Old Kent Road—similar car parks are available—which is what the construction industry does? That would certainly be more cost effective as a contingency plan.
The impact assessment refers to both parties seeking,
“to reach a mutually acceptable”,
that word mutual,
“conclusion to the dispute without resorting to a ballot for industrial action”.
That is language I understand and anyone involved in employment relations understands. However, everything in this section of the Bill reveals a mindset that is just the opposite of good employment relations. This mindset wants to maximise bureaucracy for trade unions and make any strike open to legal challenge. It puts so much on the ballot paper that the exit strategy becomes impossible, takes away any flexibility to manage a difficult situation and implicitly encourages strike breaking. The TUC has said that the proposal for 14 days’ notice,
“is designed to reduce the momentum in union campaigns”.
My amendment would allow management and unions some control over events. It recognises that mutuality is important even in times of strife and keeps the channels of communication open. I hope the Minister feels able to support it.
My Lords, I want to make to a couple of points on this group. Why it is necessary to change the notice? What is the significance? On the face of it you might say, “What is the difference between one or two weeks?”. In the context of our suspicion as to where the Government are coming from on this, I think there needs to be suitable due diligence to look at what really is necessary. The Committee ought to be reminded that it will not be one week. To give notice that you are going to have a ballot, to have a ballot and then to have another week or two after it to give notice for industrial action gives the employer quite a lot of notice already of what could happen.
I accept that the Government are changing the need for action within four weeks of the ballot, so if this was a quid pro quo for that requirement—I do not see the Government arguing that—that might be more understandable. With all the detail that is going to go on the ballot paper, if the date of the industrial action is specified on the ballot paper is that going to act as notice? Is that going to be adequate? Have the Government thought of that?
The amendment tabled by the noble Baroness, Lady Donaghy, recognises reality, and where there is agreement between an employer and the trade union it makes sense to recognise that and exclude it from this provision. We question the essential nature of this section of the Bill but we also understand that whether it is one or two weeks will not make a huge difference in the context of the notice that the employer already has of industrial action.
My Lords, I listened carefully to the two speeches supporting this amendment. There has been a lot of talk about management on the one side and unions on the other and the context of balloting and industrial action but neither of them mentioned the people actually affected by the action—the commuters who want to go to work or the parents who want to take their children to school so they can work. Surely they have the right to at least two weeks’ notice to try to make alternative childcare arrangements, adjust their own employment arrangements or make alternative transport arrangements so as to go about their normal, lawful proceedings at the time. To give them two weeks’ notice is reasonable. Obviously, unions and management are important, but I ask noble Lords to bear in mind that other people are affected by action as well.
The noble Lord has made a point about the time that this process takes, but we are focusing on industrial action ballots. Anyone listening to our debates would think that industrial relations were simply about industrial action ballots; of course, they are not. In the private and public sector, negotiations take place every year without the need for them. We now have a statutory framework for industrial action ballots that provides for time periods. With this additional proposed week, we now have one week’s notice to the employer that a ballot is taking place, at least two weeks for the ballot period, then the announcement of the ballot result, before giving a further two weeks’ notice. We end up with a period of balloting for industrial action of some five weeks: five weeks to create uncertainty for an enterprise.
I understand the point that the noble Lord is making, but that is five weeks’ notice that it might happen; there is only two weeks’ notice of the precise date when the action will take place.
As my noble friend pointed out, the rationale for the amendment has been changing while the Bill has been under consideration. Nick Boles in the other place said that the clause will give employers the last opportunity before industrial action takes place to reach a negotiated settlement. At least that is a positive approach. The purpose of industrial action is not inflicting pain, distress and disruption. Clearly, that happens; there are always consequences. Its purpose is in the negotiating process: to try to bring parties together. In the main, at the end of the day, whatever the strike, there is a settlement and an agreement. It is sad that, often, it is strike action or the threat of it that brings parties together. I wish it was not so.
The Minister—I know I keep mentioning this; she must regret it—was part of an industrial agreement with a trade union in Tesco, which has practised a very good partnership agreement. Through the practice of negotiations, it strives to avoid disruption to the enterprise. That partnership agreement recognises that the success of the enterprise is in everyone’s mutual interest—to come back to the word “mutuality”.
Nick Boles said that the extra week is to provide that opportunity so that negotiations can take place to reach a solution. I want to challenge that a bit. The impact assessment seems to be about something else. It suggests that it is about making arrangements for contingency plans. The Government have conducted a consultation, and published the results in the impact assessment, on the use of agency workers to cover duties normally performed by an employee of an organisation who is taking part in a strike or other industrial action, but there are no provisions in the Bill on the use of agency workers. Will that be included in the Bill on Report, or will we face another series of amendments that propose secondary legislation? As my noble friend pointed out, such action is likely to undermine industrial action and will give employers an incentive to engage at the local car park rather than in positive negotiations to reach a mutual settlement.
I support my noble friend Lady Donaghy’s amendment, which returns the notice period to seven days. Our Amendment 34 is basically another probing amendment.
It states that, where a union has indicated a specific date for industrial action on the voting paper—as the noble Lord has mentioned—it is not then required to give the notice.
We are trying better to understand the intent of the Government and the consequences of these actions. I am keen to get a sense of the Minister’s thinking on why two weeks. What evidence have the Government considered which demonstrates that the current seven-day period is ineffective?
My Lords, I thank the noble Baroness, Lady Donaghy, for her amendments and for the contribution she made to industrial relations as chair of ACAS. I always listen very carefully to what she says because she knows so much about this important area. We also recognise the important part that negotiations play in reaching a resolution in disputes between unions and employers. One wants to avoid these where one can. I am grateful to the noble Lord, Lord Collins, for reminding me of the good partnership we had between unions and management when I was at Tesco.
Serving notice of an intention to take industrial action is the last stage in the process before a union may actually take such action. This is when continuing dialogue between the parties becomes even more important. This is why we are moving from seven to 14 days, thereby providing a longer of period during which trade union and employer can discuss and strive to reach agreement on how best to resolve the dispute without recourse to industrial action. There is, of course, nothing to prevent a union and an employer continuing to negotiate after the notice has been served. Indeed, this happens already. Having a longer statutory notice period should not affect this.
We fully appreciate that a negotiated settlement is best for all concerned. It is better for the employer, the union and its members and—crucially—for the public. Those whose lives can be so affected should be confident that the law provides every opportunity to avoid such disruption.
The noble Lord, Lord Stoneham, asked about ballot paper dates. My understanding is that we will not require unions, when balloting, to provide a specific date. It is an indication of the time period; it does not have to be a specific date.
We will come back to that. In the mean time, I will deal with a different point. I have a serious concern about removing the notice and instead relying on the indicated period from the voting paper, as suggested in Amendment 34. An indication is a much vaguer concept. People must have notice of the days when industrial action will take place, or they cannot make the contingency plans that we have been discussing. These can, of course, help to reduce costs on both sides.
The noble Lord, Lord Callanan, most eloquently made the point that strikes can have a wider effect and cause a huge amount of disruption—not only for businesses but for the public. The public need an appropriate amount of time to make contingency arrangements. My concern is that the noble Baroness’s amendment does not address this. Nevertheless, the noble Baroness has made some good and interesting points, on which I would like to reflect.
Finally, to return to the question asked by the noble Lord, Lord Stoneham, on whether a specific date on the voting paper would constitute notice, our answer is no.
Could the Minister give me a specific answer about the issue of contingency plans? The impact assessment talks about agency workers. If she is going to reassure the Committee that there is no intention to bring forward amendments or provide for secondary legislation, I shall be very happy.
My Lords, I should like to look into that and revert, either under a later amendment or in writing, on the point that has been raised.
I thank the Minister for her response and echo what she said about taking every opportunity to avoid disruption. I thought that that was the purpose of my amendment—that employers and trade unions can take advantage of certain opportunities for two-way communication to accept the inevitable but minimise damage. I entirely sympathise with the point made by the noble Lord, Lord Callanan, about disruption to the public. It is very difficult to have any strike action—you could argue that there was no point in such action—that does not disrupt anybody. We are all here hoping that we can avoid strike action. The suspicion that some of us have is that the purpose of the Bill is to prevent strike action. I am trying to find a small shaft of light to recognise that management and unions find themselves in a difficult position, after a clear mandate, and give them every opportunity of arranging the date so that it is mutually beneficial—if there is such a thing—during a period of strike action. In the light of the circumstances, I beg leave to withdraw the amendment.
Amendment 33 withdrawn.
Amendment 34 not moved.
Clause 7 agreed.
Clause 8: Expiry of mandate for industrial action four months after date of ballot
Moved by Lord Collins of Highbury
35: Clause 8, page 4, line 14, leave out “four” and insert “twelve”
My Lords, there are two clear issues to consider in relation to this clause. The first is whether there is a case for an expiry of mandate and about the timing. The second is the most extraordinary own goal and, I suspect, the most unwanted measure in this part of the Bill: the abandonment of the requirement for some sort of action within 28 days. The evidence is clear that most disputes settle within or around 28 days of a ballot result, with the requirement for some action to be taken by the end of that period. It makes no sense, particularly in the private sector, to prolong that to four months. It would create uncertainty in a system that we have operated for a substantial period to have a ballot and then the action described in that ballot, whether it is on the ballot paper or not, taking up to four months rather than 28 days.
Our concern over the proposals is helpfully explained by the impact assessment, which states:
“We have not been able to quantify how this time limit will affect the number of working days lost to strike action, since we do not have data to reliably estimate the number of strikes across the whole economy which occur more than 4 months after the result of a ballot”.
So the Government have no idea what the effects of this change will be for industrial relations. It also notes that under current law it is for the courts to determine,
“whether a ballot mandate is still valid and that includes assessing whether there has been a substantial interruption in the industrial action”.
It is important to note that there is no freedom at the moment for a union to invoke, simply out of the blue, a ballot result from years ago. That is not the current situation.
One point that the Government have raised in support of having a four-month time limit, to which they refer in passing in the impact assessment and which was raised in Committee in the Commons, is that staff turnover means that not exactly the same group of employees will be there one or two years on from the date of the ballot. If the Government use this line today, and the Minister picks it up, it is worth being aware that any statistics for staff turnover that they cite in making this point tend to be for all employees, including those in non-unionised workplaces, in which staff turnover is significantly higher. In unionised workplaces turnover is significantly lower. The most recent ONS data covering 2014 show that across union members, 92.5% have more than a year’s service in their job. So the argument that staff turnover after just four months should invalidate a ballot, irrespective of the views of the remainder of the workforce who voted in it, is weak.
The Government’s argument is that 12 months is too long to live with uncertainty. The simple fact is that the Bill is constantly creating longer periods of uncertainty. An unresolved dispute is an uncertainty. Talks and negotiations are far better than strike action. The four-month limit just provides for a prolonged series of processes that will keep that uncertainty. Attrition does not seem a modern approach to effective management and employee-employer relationships.
The Government are introducing a time a limit for ballot mandates in reaction to specific things, particularly in the public sector, but there is no relationship in this to real life and the real industrial relations situation in the economy as a whole. If the Bill becomes law, unions will no longer be required to start industrial action within the first four weeks. Where a dispute remains unresolved after four months, unions will have to ballot again. Again, this will create uncertainty. If there are difficult negotiations, why are we saying that we should take employers and unions up to the top of the hill again within four months? If this is the process that the Minister wants, we will end up with a situation in which unions will not be able to have a positive influence and will not be able to ensure that after people have been marched up to the top of the hill they can be marched down again.
We see evidence of that at the moment in the Government’s approach to industrial relations in the health service. They inflict a situation on people in which positions become entrenched. Industrial relations are about reaching amicable settlements. Negotiations are about bringing two parties together. Industrial action and the threat of it occasionally help to bring those two sides together. Some of the proposals in this Bill will have completely the opposite effect to what they are apparently intended to have.
The Government cite the basis for legislation on this as being due to the cases where unions have threatened strike action on ballots that took place over a year ago. I suspect I know the examples that the Minister will cite, but can she give me specific examples? How many are there beyond the four cases mentioned in the impact assessment? How many are there in the private sector and how many in the public sector? We need to know the evidence before we simply take on board these measures.
The main focus of this proposal appears to be public sector disputes. Instead of worrying about four-month mandates and whether mandates have been exhausted, perhaps we should have more focus on negotiations. One of the main reasons for protracted disputes has been the Government’s refusal to negotiate. The TUC, in its statements on the Bill, believes that rather than imposing additional restrictions on workers’ abilities to strike, the Government should seek to engage in genuine negotiations—that is something that should happen, very importantly today, in the health service. Does the Minister agree that rather than imposing restrictions, she should be arguing for constructive negotiations? What efforts are the Government making to facilitate better union/employer relationships?
I come back to the point made by my noble friend: this is a Trade Union Bill. It can focus only on trade unions. Unfortunately, it cannot recognise that the reality of life is two sides negotiating and coming together. I believe this clause will create substantial legal and administrative costs for unions, which will be forced to reballot instead of working hard to seek a negotiated settlement. Unions estimate that they spend at least £1 per member on ballots, and the postage costs of member communications alone are substantial. The Government’s impact assessment states that familiarisation with the new balloting rules will cost unions more than £500,000 in the first instance. I suspect most of that will go to lawyers, who get heavily engaged in industrial relations. As many of us know, when you bring lawyers into a situation it ends up in prolonged difficulties, rather than mutually agreed negotiations.
In some cases, these proposals could create an incentive for employers to sit out a dispute rather than engage in genuine negotiations, so it could reward bad employers. Unions will perhaps feel pressurised to organise earlier industrial action to avoid the cost of reballoting. It could end up with unions ensuring that they tick the box and take the action to avoid coming into conflict with the law, adding to conflict rather than seeking mutually agreed settlements.
Amendment 35 extends the ballot mandate from four to 12 months. At present, unions are required to start industrial action within 28 days, but they can agree with employers to suspend proposed action to allow more time for negotiations. If talks break down, the union can take action. Will the Minister indicate why the Bill does not include an equivalent provision? If there is not that sort of provision, the consequence of these clauses will be to force industrial action, which is what we are seeking to avoid.
Amendments 36 and 37 probe the date by which the four-month period is due to begin. I know it is not a vital issue, but when would the four-month period start? Is it the date of the ballot? What is the date of the ballot? Is it the date it opens or the date it closes? I can see that these things will become critical when action needs to be taken at the end of a period, and then we will end up with legal challenges. It can make a significant difference to the period in which action may be taken. The beginning of the end of a ballot period is over two weeks, and you could end up with this uncertainty for a number of weeks.
The four-month limit in Clause 8 imposes a far shorter window. No action may be taken until a fortnight into the dispute, and after two months, if the dispute is ongoing, the union’s thoughts will inevitably turn to that ticking clock. It will be thinking that, before the end of the four months, instead of going to negotiations, perhaps it should better start preparing for the next industrial action ballot. So the period for negotiations is far shorter. At the end of the day, it is about what brings two sides together. There is no doubt that, in any negotiations, loss and costs are an important factor.
There is another way in which this clause might make industrial relations worse. Since it leaves the union with a short window in which to take action before it needs to reballot, it incentivises the union to take significant action to force the employer’s hand in a short period of time. Of course, balloting is an expensive process, especially when it has to be carried out by post, so unions will be keen to avoid this. For this reason, they will be under pressure from their members not to hold back in disputes. Have the Government really thought through all the consequences of these clauses, or are they simply a reaction to some of those four cases that I referred to earlier? The Minister has to give us the Government’s assessment of how the current deadlines affect a dispute; that would be useful to know. Why are the Government denying employers and unions the ability to agree to extend the deadline that they are imposing in Clause 8?
Why not allow negotiations to take place? Surely this seems a logical and beneficial step for both sides of any dispute. I beg to move.
My Lords, my noble friend Lord Collins has drawn attention to the mandate and its expiry. In particular, he mentioned that a starting point of 28 days could possibly get up to about four months, depending on the circumstances and on the parties to the dispute and what action they may or may not take. The debate on this particular clause assumes that nothing changes during the period of notice. I think that that assumption is a luxurious one because I know of no dispute where nothing changes over three or four months.
What it really demands is a shift in objective. When you have a dispute, the issue is not about how long you maintain the dispute—either through statutory provisions or, indeed, bad personal relationships. The essence of the parties is, in fact, to try to find a solution to the dispute. What is depressing about this debate is that I have not heard the word “settlement” from either side—although primarily this is a government Bill. They took the initiative and are seeking to use their mandate to change the framework for the settlement of industrial disputes. But they have not used the word “settlement”. It is all about dates and the behaviour of one party or another.
I believe that if we are to construct an industrial relations framework that meets the modern demands of industry and, more importantly, society, we have to deal with it on a comprehensive basis—not just a piecemeal basis or saying how many months or days we mean. Nothing has been said about the instruments or the structures, and nothing has been said about arbitration or conciliation. Indeed, we will be told that negotiation is a matter for the parties. I understand that but we must have a Government who facilitate and persuade, because ultimately they are the Government and they have responsibility for maintaining not just law and order but an economy which is responsive to the ups and downs of consumers’ requirements, meeting all needs.
I trust that before very long the Minister will find some way of coming back to this House and indicating how we can have negotiations and discussions, even during the notice period. If the Bill is to be worthy of anything, it has to be tested on whether it reduces periods of industrial dispute time-wise and frequency- wise. That is the only way in which we can guarantee continuous growth in our economy and an improvement in the quality of life of all our citizens.
My Lords, I have listened to the debates on the last three amendments and have noticed a crucial fact. The noble Lord, Lord Morris, spoke of both sides of industry and the Government, and the noble Lord who spoke earlier talked about both sides of industry, but no one has spoken about the customers—the people who suffer because of a strike. I have sat through debates on trade union legislation ever since the Government of Edward Heath and what distresses me is that we still do not talk about the consumer or the customer—the person out there—upon whom both employer and employee depend for their future, their wages and their profits. I do not believe that strikes are about two sides; inevitably they are about three sets of people. As the noble Lord, Lord Collins, admitted, a strike operates through pressure on the public. We also know that there are more strikes—at least more damaging strikes, as far as we can see—which attack the public as the mechanism for achieving their ends. If the railwaymen strike or the public sector strikes, it is the public against whom they are striking.
I make no comment about which of the two sides is more right than the other; there are appalling employers and there are pretty dreadful actions by trade unions. I am not in any way biased on this matter. As Members opposite know, I have had some significant concerns about this Bill and previous Bills, but I do think that somebody has to speak up for the customer. The amendment we are discussing suggests that it is acceptable to the customer to be told that a strike will take place based on a ballot that has taken place nine months before. To me, that seems unacceptable. Trade unions and employers should take seriously that they should not impose upon the public, upon whom they depend, that kind of, frankly, pretty random and arbitrary action.
I go back to Ted Heath and 1971 and 1972, as the noble Lord does. I think it is unnecessary to use over-the-top language such as “striking against the public”. Take the present dispute of junior hospital doctors. If you meet any of them, do they think that they are striking against the public? No, of course not. There is obviously a nuance—to put it mildly—between whether you are talking about the Secretary of State being the public or somebody else being the employer, or the issue of how many hours a week are being worked or whether you work on Saturdays and so on and so forth. It is not helpful to have this characterisation. Even though the metaphor of the two sides of industry is a well-known one, it is open to interpretation.
It would obviously be unsuitable for me to make any comment whatsoever about the current strike, given my relationships. Therefore, I will keep away from that. However, I will take on very clearly the point that the noble Lord has made. One cannot possibly suggest that a railway strike is effective if it does not affect the railway passengers. To say, “I am striking but I do not mean to upset the passengers” is really a metaphor without meaning. The staff are striking because they do mean to upset the passengers, because that is the only way they think they can bring their case properly to the eyes of whichever British transport company is concerned. I do not in any way want to make the noble Lord unhappy, but one of the problems is that we pretend. We should not pretend: the purpose of a strike is to cause inconvenience in order that the management of whatever it is should give way.
I just want to correct the idea that nobody is concerned about the consequences of industrial action. Of course we are; all sides are very concerned. The evidence before us is that, in the day-to-day life of industrial relations, strikes are a matter of last resort. The evidence shows that most industrial action ballots result not in strike action but in speedier negotiations. In relation to this clause, does the noble Lord think it would help the process to have a continuous run of industrial action ballots if the negotiations have not been concluded within four months? The problem is that the negotiation period will move. It will not be four months and then a ballot; it will be before then. Will that help the speedy conclusion of negotiations?
First, I did not accuse anybody of not caring about the passenger or the customer. I merely pointed out that in all the speeches I have heard from the other side nobody mentioned these people, so I cannot believe it is front-of-mind; I cannot believe that it is actually there. The noble Baroness, Lady Donaghy, whom I listened to with great care, and respect considerably, suggested that she had a suspicion about the nature of these proposals. The suspicion was that they were not really about improving industrial relations, but were in some way of a party-political kind. Of course, we can all have our suspicions. I have a suspicion that people who do not mention the customers or the passengers or the rest are not as interested in them as they are in the trades unions themselves—
Would the noble Lord accept on this point that many of us are opposed to most of the measures in this Bill precisely because we think it will be entirely counterproductive to good industrial relations—that it will lead to more action and more problems to the public? It is for exactly that reason that we opposed this unnecessary Bill in the coalition, and we will continue to oppose it here.
I fear I have to say to the noble Lord that I am much older than he is. I remember exactly that argument—exactly that case—demanding that we should not have ballots, that it would extend the time that it would take to get rid of industrial disputes, that it was unnecessary to have them by post, and that it was perfectly possible to do all these things in the old-fashioned way. The very party that presented those arguments would not dream—well, I hope it would not dream, even under the present circumstances—of abolishing those things, yet the arguments all the way through were exactly the same as we have now. That does not mean to say that this Bill is a good Bill, or that this Bill is right. What it does mean is that many reasonable, centrist politicians—and I am one of them—
If the noble Lords opposite do not think that, they had better have a few words with some of the Conservative associations in Britain. Simply speaking, it means that some of us who are reasonable and sensible about this do not immediately take for granted that every criticism of that sort may be true. That is the only position I am trying to put. I am asking some fundamental questions of the arguments that have been put forward opposite.
I cannot account for the arguments that other people made a long time ago; as the noble Lord rightly states, I was rather younger then than I am now. When noble Lords on these Benches were dealing with these matters and bringing in laws—whatever he says, they were were rules that I did not propose and never have—they were bringing them in to address a problem. This is a Bill that is a solution to a problem that is not there. If you look at the days lost to industrial action and the incredibly responsible behaviour of the trade unions during a period of unprecedented austerity, you will see that there is a difference. There was a big problem that they had to tackle, whereas this is a solution in search of a problem.
I hoped that I was addressing this with a certain degree of care. I do not want to enter into the argument as to whether trade unions or employers have behaved in one way or another. I believe that industrial action from time to time is necessary. I have never disagreed with that. But it seems to me important—I think the party opposite agrees—that this should in fact be the last resort: you do not have industrial action unless you really need to have it. I hope that one of the reasons the party thinks that, although it has not referred to it, is that it inconveniences—and more than inconveniences—the public as a whole. It is not unreasonable to think seriously about some of the things that can be done to ensure that people are careful about this. That is on both sides; I do not suggest anything other than that.
It seems reasonable to say that you do not call a ballot unless you really need to have industrial action, and it is unlikely that the circumstances four months later or thereafter will be the same as when the ballot was held. That is the point that the noble Lord who spoke last put forward. I am afraid that that does not support his case; it supports my case. If there have been significant changes in those four months, it does not seem reasonable to rely on a ballot that took place in entirely different circumstances. You should have a ballot close to the point at which the industrial action is taken. I think that four months is rather a long time. A week is a long time in politics and four months is a long time in industrial relations. There are other things in the Bill that I am not very happy about, but this proposal seems perfectly reasonable.
The Bill removes the requirement to take industrial action within 28 days. Does the noble Lord think that that is correct? That is what it will do: take 28 days out and say four months. That will not aid the process. I accept what the noble Lord said about strikes being a matter of last resort and that they are to be avoided, but on industrial action ballots the Government should not try to interfere with industrial relations in the way they have. The fact is that the most leverage a union has on an employer is not the industrial action it takes, but the mandate achieved through industrial action ballots.
I give way regularly because I much prefer debate in this House. I do not much like the system that we have where you put down your name to speak and then nobody ever interrupts you; I always thought that that is not of as much interest and I am all in favour of changing it. I have given way, but I will not be led astray on to other issues. The issue I put forward is very simple: it does not seem sensible to rely on a ballot that took place more than four months ago to take industrial action, given that the change in circumstances may well be considerable, as the noble Lord said. That is why I would like to hear more about the customer and the fact that we ought to rely on a system where people know, with some immediacy, what the question is, vote on it and then take action.
My Lords, I entirely agree with my noble friend Lord Deben that strikes are, on the whole, to be avoided. The question is whether Clause 8, which I am talking about, not the Bill as a whole, assists in the removal of strike action or industrial action. The union has a very strong mandate once it succeeds in a ballot, assuming that that is how things develop. Therefore, it is important that the time given by that is not unnecessarily restricted. If progress is to be made in eliminating the need for a strike, it will be at its best after the union gets a mandate to have industrial action, if it is necessary. This is a critical period for the success of negotiations. One can see that negotiations sometimes take some time. They may progress rather slowly, but if they progress at all they are worth taking. I think very much of the customers, passengers or whatever affected by strike action. That is something the Bill should aim to reduce. Therefore, once a mandate has been given by a ballot, it should be worked out so far as possible.
It could be, of course, that negotiations come to a halt in these four months and the employer decides he is not going to do any more about it. On the other hand, it is perfectly possible that considerable progress may be made in these four months. Is it right to call an arbitrary halt to progress, if it is taking place, after four months? I suggest to my noble friend that it is worth considering whether this period should be subject to extension by agreement with the parties. If progress is good and the trade union is in the best possible position, having had a mandate from its members in accordance with these rules, is it right or wise arbitrarily to bring that period of probably the most effective time for negotiations to an end?
I agree with my noble friend that, of course, circumstances may be very different after four months. On the other hand, it is possible that they will be different in the sense of being more favourable to a settlement than they were at the beginning of the four months. Is it right, therefore, arbitrarily to throw that opportunity away? I suggest for consideration the possibility of the employer being able to extend the period if it looks as though that will ultimately reduce the necessity for a strike altogether.
I am also interested in the connection between new subsection (2D) inserted by Clause 4—the notice about the period—and the period in which the industrial action may take place, which comes under Clause 8. This being Committee, I strongly suggest to the Minister that that could be looked into. Very often, getting a ballot mandate has an effect during negotiations. The employer will not, I hope, be insensitive to that improvement. It is a very clear declaration of the attitude of the proper majority of the employees to the matters in dispute.
My Lords, just for the record, I have been misquoted. I did not argue the case for four months; what I said is that my noble friend Lord Collins drew attention to the fact that the expiry date has drifted, or will drift, from 28 days up to four months. The record will show that.
My Lords, I apologise for being unable, through my own fault, to speak at Second Reading. I give general support to this group of amendments, and to Amendment 38 in particular. It is a positive amendment to a Bill that has little positive about it. It is designed to delay and decrease the likelihood of industrial action starting and gives an incentive to both sides to keep talking without disadvantage to either.
The Bill ought to have been about resolving disputes, not about organising them. My noble friend Lord Lea mentioned the junior doctors today on strike. They are not the usual suspects when we think about strikers. We have heard lots of statistics about the overwhelming number of workers who have never been on strike, and, for those who have, how it was, for them, once in a lifetime. There are times when people do things they do not want to do, believing that there is no other way. No workplace is immune to this dilemma; not even this Chamber. How many noble Lords did not want to vote against the Government on benefits cuts? But they did, believing there was no other way to answer a Government who were neither listening nor prepared to do the right thing. Every single day, in countless workplaces, decent men and women encounter petty but sometimes serious injustices. Most times they take it and carry on working. But there are times, as your Lordships know, when you have to take a stand. If laws are needed when the working relationship breaks down, they should help to repair that relationship. This Bill does not.
This amendment is a simple, small step to making a bad situation better. It provides a mutual opportunity for a second chance to resolve a dispute. This is a chance for second thoughts about finding a solution to what is, by then, an entrenched conflict. This is not only what businesses want; it is what customers, the consumers of their products, want. I urge support for this amendment. Let us test the Government’s ability to be sensible.
My Lords, I declare an interest as a retired member of Unite. I joined my first trade union in 1943 as a youth in training on the Post Office telephones, so I have a bit of experience that I can share with the noble Lord, Lord Deben.
I give support to these amendments and, in particular, to the noble Lord, Lord Collins, who spoke about consultation. That is always much better than confrontation. Throughout my life I have been involved in trade union activities. When I worked for the CEGB
I was secretary of the local advisory council and a member of the regional and national advisory councils, so I have been around trade unionism for a very long time. I was always impressed at amendments that were put into the gas and electricity Bills at the time—I think they were moved by Mr Mikardo, who was then MP for Reading—which made provision for consultation. Since I took part in that consultation, I know that it works.
The power station in which I worked had previously been owned by the Wessex Electricity Company. It was not used to consultation. When the company was nationalised, and the law said that there should be consultation, it had to embark upon it. I helped it to do so. It was a long, hard job but in the end consultation does work. Certainly, in my time the people I represented never needed to go for strike action or go-slow action, because we had the patience to do so.
That is what the noble Lord, Lord Collins, and these amendments are talking about: patience, consultation and understanding. The noble Lord, Lord Jordan, was general secretary of one of the trade unions to which I used to belong and knows his stuff as far as trade unionism is concerned. I just wanted to say those few words to support the idea that consultation works. This Bill is not consultation, it is confrontation and confrontation never works. It only causes disaster, both to the employers and the workers themselves.
The noble Lord, Lord Deben, had a lot of interruptions —I felt sorry for him, really, but he can take it; he has been around a long time. He was absolutely right to talk about the customer. The customer in this case is wronged by strike action. But he must not imagine that the customer is always against the striker. I can assure him that when we had the miners’ strikes in the 1970s, people were queuing up to accommodate the striking miners in their own homes. Indeed, according to the opinion polls, two-thirds of the public support the junior doctors. The public are not always against strikes, although they often are. But I support the amendments and I think that on the whole this is a very foolish Bill.
My Lords, this group of Labour amendments, particularly Amendment 38, seeks to inject a further term of flexibility into the period of time before which a mandate might ultimately expire. Currently there is no ultimate time limit but, as has already been said, any reasonable trade union would wish to ensure that it still had the full support of its members before setting a date for strike action to take place. The problem with deadlines is that they up the ante. The pressure on both employers and trade unions is to achieve a resolution, as the noble and learned Lord, Lord Mackay, indicated.
Amendment 35 seeks to substitute a 12-month mandate for the four months suggested by the Government. It is very difficult to know whether 12 months would be any more suitable because every trade union dispute is different. To me, 12 months feels too long—but what is the right period of time? Labour Amendment 38 addresses this in what seems a very reasonable way: the period of the mandate can be renewed every three months where the employer and the union have a mutual agreement to that effect. Again, this injects an important element of flexibility and would stop the race towards meeting the four-month deadline, which could result in a nuclear option being exercised by the trade union—or, indeed, the employer.
It seems somewhat ironic that this Government purport to want to devolve power and decision-making but here they are being prescriptive in a way that is very likely to exacerbate the breakdown in employer/trade union relations rather than enable the business of negotiation to proceed in a smooth way. Neither employers nor trade unions will benefit from the setting of an arbitrary four-month mandate. We want more “talk, talk” not “walk, walk”, particularly because, as the noble Lord, Lord Deben, and several other noble Lords have mentioned, the customer is going to be disadvantaged.
My Lords, we have discussed at length the problems that are caused by old ballot mandates. For public credibility we must move away from having an indefinite period, with or without the agreement of the employer. As an example, the NASUWT took industrial action on
My noble friend Lord Deben made the important point about the three sets of people affected. He rightly emphasised the customer—the passenger, in my first example—and the public, who are affected as a result of disruption on an out-of-date mandate. That is why Clause 8 specifies that a ballot mandate must have an expiry date. This means that there will no longer be a prolonged period of uncertainty. That will benefit everyone.
In deciding how long a mandate should last, we have sought to provide a balance. On the one hand we have removed the uncertainty that can hang over employers’ heads for years. On the other hand we have provided a reasonable amount of time for constructive negotiations. The question then is what period would be appropriate to deliver that balance.
We have proposed four months. I have listened carefully and with great interest to the arguments put forward by noble Lords on all sides of the House. I have heard some good arguments for a period of longer than four months. Some are resistant to that. Nevertheless I remain concerned that a period of 12 months would tip the balance far too far in favour of unions, to the detriment of others. That would mean that employers would still have the threat of a strike hanging over them for a considerable length of time. That does not help to create a stable and certain environment for business. Nor is it good for union members. They need certainty about the period during which they may be asked to take industrial action, particularly given the consequential effect on their pay and their families.
Another important point on which my noble friend Lord Deben also touched is that people’s views about a dispute can change over time. It is only right that the union checks back with its members to see whether they still support the industrial action. This is why I have a concern about Amendments 38 and 39.
They suggest that the union and employer could agree between themselves to extend the mandate, either indefinitely or for, say, three months, without reballoting members to see whether they agree. My noble and learned friend Lord Mackay commented on this. Such a rolling and continuing mandate would also affect the wider public, and we should think about that in the balance as well.
Finally, in relation to Amendment 36, I am pleased to assure the House that it is not necessary to make it clear that the four-month time period begins on the last day of voting. The date of the ballot is already defined in Section 246 of the 1992 Act as the last day of voting in the ballot.
The noble Lord, Lord Collins, asked why we should remove the 28-day initial action period. It is no longer necessary—I think that he came to this conclusion himself—because the ballot mandate will be limited to four months and this will increase the time available for dialogue so that strike action is averted where possible. We want strikes to be a matter of last resort. I hope that I have understood his point correctly.
Just for clarity, the purpose of the 28 days is to ensure—whatever the rights and wrongs—that industrial action ballots are a matter of last resort. My point was that industrial action ballots, as the noble and learned Lord noted, themselves become the leverage. They strengthen the union’s position. Unions were quite quick to learn that the bad old days did not produce results. The reforms—and I shall call them reforms—ensured that mandates were far more secure. They have more authority and are, therefore, far more effective. My problem with the proposition in this clause is that they become a regular thing. By removing the 28 days, they are no longer the precursor to industrial action, while inserting every four months leads to the situation where unions will have to get their members to vote for the mandate not just at the end of four months but clearly before that. This will prolong the uncertainty and make matters worse.
I come back to the point that this is about how we support two sides in negotiations. I am not ignoring the impact of disputes, but at the end of the day what will stop a dispute is the two sides reaching an agreement. The current situation is far better, and I fear that the proposals in this clause will potentially lead to uncertainty for a much longer period. The noble and learned Lord made the extremely good point that the strike ballot mandate can become an important element in reaching an agreement. Is it not then appropriate and sensible that the two sides, instead of being forced to come apart again and ballot, can agree mutually to extend that period so that the focus is on negotiations rather than on a strike?
I thank the noble Lord for his measured response. I agree with the point that was made about trade unions doing good things. It was good to see the noble Lord, Lord Jordan, joining the debate and reminding us of all the workers who never go on strike and to hear the noble Lord, Lord Stoddart, talking about the importance of consultation.
We discussed some of the positives about unions in our very good curtain-raising debate last November, which I certainly found extremely useful for getting me into the subject.
We still need to tackle the question of out-of-date ballots, however, which can lead to industrial action long after people have made up their minds. That is a problem we are seeking to address in this legislation and in this clause. However, this has been an important debate this evening, and I would like to take some time to reflect on the points that have been made. The length of the mandate and extension by agreement seem to be the two things that have come through in the discussion.
It is important, before we come back to these issues, to note that when we make legislation, it should be evidence-based. I know that we have these four cases that are often quoted, and the impact assessment, but has the Minister’s department properly examined what goes on in the private sector? Is there a difference between the private sector and the public sector? What is the norm for industrial action ballots? I think the vast majority of industrial action ballots in the private sector result in negotiations without industrial action. If that is the case, could the department do a proper assessment? The unintended consequence of this measure could be that the process of negotiations is interrupted, to have a strike ballot to ensure that the negotiations continue. Strike ballots are not a neutral process: they are about members winding themselves up and saying, “We have a strong case and we’re not going to resist it”. The constant referral to a strike ballot will, in my opinion, harden views not soften them. It will not aid negotiations.
My Lords, I have listened to what has been said and, as your Lordships know, have already wound up. We have some information on what has happened in the private sector and I am very happy to have a conversation with the noble Lord before we get to the next stage. We also have some very good examples, mainly in the public sector, as the noble Lord says, where these out-of-date strike ballots have been enormously damaging. That remains the case, but of course we can talk further. My door is always open, as I have said so many times.
I assume the Minister is asking me to withdraw my amendment, but I repeat that this is an issue we will have to come back to. As we have heard in this debate, there is a consensus across the board, from all sides, that we have to be careful here not to hinder the process of negotiation. We need to ensure that it is supported. However, in the light of the assurances about having further discussions, I beg leave to withdraw my amendment.
Amendment 35 withdrawn.
Amendments 36 to 40 not moved.
Clause 8 agreed.
Clause 9: Union supervision of picketing
Moved by Lord Stoneham of Droxford
41: Clause 9, page 4, leave out lines 36 to 38 and insert—
“(1) In order to facilitate a picket under section 220, a trade union may choose to take the actions specified in subsections (2) to (8).
(1A) Failure to take actions specified in subsections (2) to (8) does not make any picket conducted under section 220 unlawful.”
My Lords, I emphasise the point made by the noble Lord, Lord Deben, that strikes are not happy situations. They are very much the last resort, they are obviously unpopular with customers and they are often a sign of failure. In these situations, you can get examples of relations breaking down and intimidation. That is part of what is a pressured relationship and part of tough negotiations. Intimidation itself is unacceptable, but there are various strains of it that you have to accept in tough negotiations and in a pressurised situation. There will be that sort of experience.
I have experience of picketing from both sides of industry. In my youth, I helped organise pickets in the railway industry. As I got older and became a manager in a very difficult industry—the print industry—I had to deal with pickets at my gate, once with a two-week dispute with a print union and then again with a 12-week dispute with journalists. Both occasions were harrowing and very sad experiences that caused damage to relationships which took a long time to overcome, although I am glad to say we did overcome it.
I have a number of points to make. Orderly picketing requires the commitment and co-operation of unions. It is often not understood that unions play a very important role not only in managing relationships in industry but in containing conflict when it breaks out. Orderly picketing is very important. We are not these days, I am glad to say, talking about the sort of pickets that we had at Wapping, at Eddie Shah’s Messenger Group or at the Saltley coke works during the miners’ strike. We now have a very clear definition of what peaceful picketing is, backed up by a code of practice, because it is very difficult to define and order relationships when they have broken down. That is what we have had for nearly 25 years, and we have to ask ourselves whether what is being proposed is better than what we have after the progress we have made. That is open to question: in fact I think that the road we are going down will be very damaging.
I remind the House that the definition of peaceful picketing allows picketing at a place of work only by employees who work or have worked there and that there are strict limits and guidance on the number of pickets and how they should behave. That is largely defined in the code. What we are doing here is turning aspects of the code into a statutory requirement. We have to ask whether that is going to be beneficial. The Government have already had certain second thoughts on aspects of this in the Commons. I do not know where the idea that you could give 14 days’ notice of using social media and how you were going to use it came from, but it was pretty idiotic. I am glad that has gone. Similarly, the idea of having arm-bands for all the pickets.
Let us remember when we had problems with picketing. I have some experience of it. The criminal law is available when there is genuine intimidation, aggressive behaviour or trespass, but if you use it, it can inflame matters. That is why having a code of practice is so much better particularly when, at the end of the day, it is about resolving a dispute and getting both sides round the table and back at work. The more pickets are inflamed, the more difficult that is to do and the more bitterness ensues.
In this country we recognise that we have a right to protest peacefully and picketing is a form of that—a way of putting your case. If you define the statutory rights of picketing too closely, there is a very strong argument that you could deter responsible trade union activists from taking part in the picket line to try to keep discipline and control. We know there is a danger of the state monitoring of union activists if the police are overinvolved. But there is a more important issue about the police. They do not like getting involved in these sorts of disputes and prefer to keep aside unless they are really needed. I think they believe that their involvement should be the exception, not the rule.
I go back to my point about the voluntary code combined with a clear definition of picketing being better than trying to make more clauses of the voluntary code statutory. I know we will go back to the old argument as to whether we should have “may or “must”. The Minister and I have had discussions before where we were arguing for “must” and she was arguing for “may”. I am going down the route of “may” rather than “must” this time to make the point that maintaining the voluntary code is very important.
I go back to the question: what proof is there that we need to go down this route? In the last few weeks, I have read the Carr report, which I think the Government have tried to base quite a lot of evidence on. I read it very carefully. It is a very odd report because its terms of reference changed half-way through, mainly because the lawyer involved was concerned that just before the general election was a very political time to carry it out. I have also looked at the consultation we have had on intimidation. The evidence in both those reports is pretty weak.
The Carr report makes it absolutely clear that, if there is outrageous behaviour, the criminal law can follow up and deal with issues if necessary. Often the actions are on both sides. The employer can provoke the situation and individuals—people in the picket line or those driving through or crossing it—can be equally abusive. The situation is very difficult to contain and control and that is why the unions are very important in this process and their co-operation is vital. In many of the disputes in the Carr report the unions have lost control. This is due to inexperience. In one case it was because there were very difficult racial issues involved. That is why having a clear legal definition of how peaceful picketing can happen, combined with the code is very important.
I want to ask the Minister three questions. First, does she accept that the co-operation of the established unions in maintaining order on picket lines is critical and, therefore, it is worth trying to keep that co-operation? Secondly, is she not concerned that further legal action will encourage unions to distance themselves from the work they currently do in controlling the existence and behaviour of pickets? Thirdly, what is the degree of the problem, given that we know that disputes are down? Inevitably, there are examples of difficulty on picket lines. It is not surprising with human nature being what it is, and individuals in a very emotional state, that you will get problems from time to time. What convinces her that the voluntary code combined with a clear legal definition of peaceful picketing is not adequate to maintain good relationships? Does this really warrant a completely new approach, which could undermine all the good work and progress we have made in industrial relations over the last 25 years since those horrendous examples of picketing we had in the 1980s and early 1990s?
Public support in disputes is always very important: we are seeing that with the doctors’ dispute at the moment. People underestimate the degree to which the unions have to work to keep that public support. That is why they do not want, any more than anybody else, violence, intimidation or misbehaviour on picket lines. That is why they put a lot of resources into making sure that the behaviour is, on the whole, acceptable and in the public interest. I beg to move.
My Lords, I support the amendment moved by the noble Lord, Lord Stoneham. I ask the same question about this and about certain other aspects of the Bill. What is the problem? If you ask the police whether picketing is high on their list of concerns, the answer will be no. They are not bothered beyond turning up, having a word with the pickets, seeing that things are okay and saying that if there is any trouble they will be back. That is it. If there is any trouble, they are back. That is the way I have known pickets working over the years in a decent relationship with the police: a wise word, a kind word, a firm word, just to make sure that people know what they are doing and what they can do.
The code of practice is a good guide in many ways. It has a bit of flexibility. For example, the normal maximum that the law aims for is six pickets. If there happen to be seven there and the police turn up, would they make a big issue of it? They would not. It would be different if there were a lot more. So I say we should stick to the code of practice—it has been found to be rather successful. I agree very much with what the noble Lord, Lord Stoneham, said: a picket can be a difficult exercise for a union, especially when tempers are running high and little things inflame because they are set down rigidly in concrete in the statute law of the United Kingdom. I think that really is doing the wrong thing.
The Carr report, to which reference was made, was basically about leveraging. The concept was that you could turn up outside somebody’s house, golf club or whatever and embarrass the boss who was being hard-faced and difficult. That is not picketing. That is some sort of demonstration. Picketing, as was said, is allowed only at or near the place of work for the purposes of peaceful persuasion of the case of those on the picket line. I do not accept that they are the same thing. I could not find any evidence in the impact assessment of any problems on the picketing front. In fact, somewhere it says that there are no problems with the conduct of pickets. It goes straight into leveraging, the Carr report and bits of his creative writing.
We are aware that the provisions are strongly criticised by a range of civil liberties organisations, including the Equality and Human Rights Commission, which say that they may be in breach of the European Convention on Human Rights and so on. I do not want to get too much into that at this stage, because I am trying to adopt a common-sense, pragmatic approach. The code of practice is working, because it has a bit of give, flexibility and scope for the police, union officials and others in a way that putting things in statute does not.
The National Police Chiefs’ Council said that the provisions could waste police resources and are unnecessary as this is not a problem and that they have enough pressures on them without having to enforce a new statute in this area. If you are making a change, you need some good reasons for it and I do not think the Government have any. I very much support the amendments in the names of the noble Lord, Lord Stoneham, and the noble Baroness, Lady Burt.
My Lords, the gist of the amendments of the noble Lord, Lord Stoneham, is to render the provisions of the clause optional. Let me read a few extracts from the evidence to the Carr review, to which he referred, to demonstrate why that would be undesirable. It refers to disputes at London Underground Limited and Transport for London from 2012 to 2014:
“TfL has described the atmosphere and conduct of picket lines as sometimes being intimidating to non-striking staff”.
TfL cited the following alleged examples: alcohol being consumed by a picket; the picket obstructing public access to the station; verbal abuse in strong terms; swearing and shouting; and a conviction for assault, overturned on appeal only because the police failed to submit CCTV evidence to the court.
In the fire and rescue services disputes from 2010 and 2013-14, examples cited include a mass picket listening to speeches made by union officials, one of whom is saying: “Tell” them,
“that we will follow them wherever and whenever they come into London. And we will be sending them a message saying get out of London and do not come back”.
There are allegations of the use of social media to intimidate non-striking firefighters, station gates padlocked and crews’ cars blocking forecourts, and private security guards abused and bucketed with water from roof level. The noble Lord, Lord Stoneham, says that we have to put up with some intimidation. I do not think that we should put up with that sort of intimidation.
The CBI states:
“The current status of the picketing Code of Practice does not provide a great enough incentive for trade union members to remain within the prescribed guidelines … CBI members have witnessed trade union activity that falls foul of the current guidelines in recent years”— particularly with the advent of social media.
“Business supports the proposals to make parts of the Code legally enforceable. The CBI would … like to see the government go further and reasonably transpose the entire Code. The requirement to appoint a picket supervisor, as set out in Clause 9, provides a single point of contact—with a working understanding of the code—for the duration of the strike action … Legally requiring the appointment of a picket supervisor will uphold the Code on the picket line, reducing incidences of poor practice”.
The amendments seem inappropriate.
My Lords, I thank the noble Lord, Lord Stoneham, for the points he made; I agree very much with them. It shows once again that when someone is speaking with direct experience of industry—on both sides—of his memories of occasions of industrial and commercial disruption and dispute, it helps this House in its deliberations on this Bill.
Notwithstanding the comments of the noble Lord who has just spoken, what particularly concerned the public in London was the strikes on London Underground. One can understand that: they can affect millions of people in their daily routine and are therefore a very serious matter. While I was concerned at the time that the unions might be overreaching themselves and making proposals that were going to be too difficult, I was concerned also about the other side of the picture, which was the hysterical approach of the only evening paper in London, the Evening Standard. It automatically and immediately condemned the unions without explaining in detail the reasons for the action, just saying that they were being irresponsible. There was the notion that for some reason there was an obligation on those unions never to strike or take industrial action, even if they were genuinely concerned about many underlying matters of the operations of London Transport, including safety considerations, which I think were uppermost in many trade union officials’ minds. That never got a hearing or any coverage in the Evening Standard, which was, apart from other free sheets, the only regional newspaper that one could get in London.
That was the general background, and I think it is therefore in the folk memory when it comes to industrial relations that there is an extra special obligation in the public sector and that, particularly with transport, it is selfish for any industrial action to take place. Driverless trains is a separate matter that needs to come back on to the agenda.
Notwithstanding that, the priority should surely be to have a balance in industrial relations provisions of legislation. I was very pleased when, at Second Reading, the Minister referred in her remarks opening the debate to the question of picketing, and said:
“The Bill also makes an obligation of the appointment of a picket supervisor. This requirement is already in the code of picketing, which has been followed without difficulty on many occasions by many unions”.—[Hansard, 11/1/16; col. 14.]
Concluding the Second Reading debate, very late at night, just after 10.45 pm, she referred to it again, saying:
“We are also comfortable with the measures on picketing, which are designed to make it clear to the police and the employer both where a picket is taking place and whom the police or an employer should contact. These are reasonable steps to ensure that pickets pass off peacefully”.—[Hansard, 11/1/16; col. 126.]
The difference between those two quotations is, of course, the absence of any reference to the code. That might have been acceptable, except that the clause includes 10 subsections at least half of which are just an irritant to union and employer procedures in dealing with these difficult subjects.
If industrial action has been called and a strike is looming, or things are getting difficult, already, the temperature has risen. To have detailed measures about the individual behaviour of pickets—most of whom, according to the police, have behaved very well in the examples we have over the past 20 years since the period of unusual unrest before that—is putting oil on the fire and raising the temperature still further. Surely that cannot be right.
The Minister has been accommodating and forthcoming in Committee both on Monday and today, saying that she will give careful thought to lots of suggestions made in amendments, allowing us to have no Divisions so far and clauses to go through. I hope that she will be able to give such an undertaking in respect of this very important clause and the procedures on picketing.
My Lords, I have listened very carefully to noble Lords who have spoken in favour of these amendments. I am slightly at a loss to know what their complaints are. It seems that everybody who has spoken so far supports the picketing code, which has been reasonably successful for more than 20 years now. I hope that nobody supports the kind of tactics and behaviour outlined by my noble friend Lord De Mauley. I think that we, on this side of the House, also accept that the vast majority of union picketing operations abide by the code—but not all, as my noble friend outlined. So what can be the complaint from people who support the code and who agree that it amounts to responsible picketing? What can be the complaint about incorporating some, but not all, of those provisions in statute?
There are one or two isolated examples, still taking place, of disgraceful intimidation of those who want to go about their lawful business. It seems right that the provisions which have worked successfully for the vast majority of responsible unions should be enforced in statute for the small minority of irresponsible unions. All the proposers have spoken in favour of the code.
Does the noble Lord accept that the examples given by the noble Lord, Lord De Mauley, are illegal under the present law and can be dealt with now with all sorts of different measures? I assume that the problem with the examples quoted was of enforcement, not of the weakness of law.
Well, they might be against the code but, as I understand it, the code is voluntary at the moment. It is not enforceable. I assume that outright intimidation is against the law and I hope that the police would take appropriate action. In its briefing, the CBI refers to a number of instances where the existing code has not been followed. As a responsible trade unionist, the noble Lord should be standing up for the majority of responsible unions that do follow the code and condemning, rather than seeking to support, the small minority that do not and that indulge in irresponsible behaviour. The provisions are entirely reasonable and those who are in favour of responsible trade unionism and responsible picketing should have no problems with them.
My Lords, I do not wish to detain the House for long. In 1970, I was elected to the other place for a mining constituency. I saw the first miners’ strike and I still had a very large colliery—Littleton Colliery—one of the largest in the country, throughout the second miners’ strike.
During that period, I was impressed by two things. One was the close community feeling locally, which meant that I was a welcome visitor at any time to the pits—and later to the one pit I had left. I never had any fierce altercation, even heated argument. I had many discussions, but I was also very conscious that ugly things were happening elsewhere and that there was abuse of people who wanted, in all conscience, to go to work and whose lives were made fairly miserable in the process. So I do not think any moderate, sensible, balanced person could possibly disagree that there should be a code. The question is whether we give it the force of law.
The noble Lord, Lord Monks, made it quite plain that the ugly, indefensible actions to which my noble friend Lord De Mauley referred are illegal anyhow. We have measures that we can take against people who behave in this way. A code does not have the force of law in that sense. The question is whether we incorporate some or all of the code in a piece of legislation, which I think is frankly not necessary. It was in the manifesto and therefore the Government are entitled to bring it before your Lordships’ House, as they have taken it through another place.
We had a reasonable discussion about taking measures to define what people could and could not do. When I suggested the substitution of the word “clear”, my noble friend gave a moderate and helpful reply. Clearly, there are going to be long discussions taking place between now and Report. I think the answer is for there to be a discussion on the whole subject of picketing. In the 21st century, no reasonable person could conceivably argue that there should be no legal protection for people who wished to withdraw their labour. Of course there should. It therefore follows that there must be proper legal provision for those who wish peacefully to persuade their fellow workers who have not accepted the strength and validity of their arguments to do so. It must be done within a wholly peaceful, unaggressive, unintimidatory context. I do not think anybody in your Lordships’ House would disagree. My noble friend the Minister has shown herself open to ideas and suggestions. We need a proper discussion with her to see if we cannot come to a proper compromise that can be in this piece of legislation without overdoing it—without putting boots on it, if I can use that metaphor. I hope that this will follow from this debate.
My Lords, I wish to speak briefly in support of the amendment moved by my noble friend Lord Stoneham and to pick up on some of the points made so far.
First, it should be absolutely clear that the noble Lord, Lord Monks, did not suggest that he was supporting people who engaged in intimidatory and violent action. He certainly did not and that should be on the record.
The noble Lord, Lord Callanan, spoke as if the code of practice for picketing was the only framework within which picketing took place. It is not. As the Government’s impact statement says, there is a detailed framework of civil and criminal law which governs picketing. In addition, there is a statutory code of practice on picketing which may be taken into account in law in any event. My noble friend Lord Stoneham made an important point about taking the code of practice into law—whether unions and members might be less willing to supervise pickets if we moved in that way. As my noble friend said, the unions play an extremely important role in ensuring that trade disputes are conducted in a proper and lawful manner.
Finally, I return to the point made by my noble friend Lord Stoneham, the noble Lord, Lord Monks, and other noble Lords. It is not good enough for legislation just to say why something should not be done. It should say why it should be done—what is the problem? The Government’s impact statement fails to provide that. Noble Lords have made reference to the Carr review. As the noble Lord, Lord Monks, said, that often dealt with issues which were not related to picketing and which would have been dealt with under the civil or criminal law. When an impact statement has to rely on the words:
“However, the media has reported that people not involved in a dispute can feel intimidated”,
one wonders about the nature of the problem the Government are seeking to solve. We all want to ensure that picketing is done peacefully and properly under the law—that is not in question. The question is how to do it most effectively and whether putting the code of practice into law is the effective way to do it. We, on this side, do not feel it is.
My Lords, I will make a couple of brief points. There is an irony in this debate, because most of the time in opposition we are asking for things to be in the Bill, and it is the Government who say, “Oh no, there is a very good reason why it should not be in the Bill, it can come in a regulation”—or, dare I say it, in a code of practice. So I am aware of that dilemma. The first thing that I want to say after that is that I do not think that anybody here is going to say that violence and intimidation are acceptable, whether on a picket line or elsewhere in pursuit of a certain point of view. But I will say that up to now the code of practice has been adequate. I do not agree with the point made by the noble Lord, Lord Callanan, that just because a few people might disregard it, the tail should be allowed to wag the dog and that somehow or other things need to be tightened up because there is a very small minority determined in some cases to cause that confrontation and take on the establishment.
My final point might seem trivial, but I do not think that it has been raised since my noble friend Lady Gould of Potternewton raised it at Second Reading.
It is about the feminisation of the workforce. To a large extent, the trade union movement has not caught up with that as much as I would have liked, but we are now talking about a workforce, particularly in the public services, the majority of whom are women and people from ethnic minorities. As often as not, when you see pictures of pickets in the newspapers, the vast majority of them are women. I think that they have a slightly different understanding of employment relations; they might feel passionately about a particular dispute, but I would like to see one instance where women on a picket line have caused these difficulties. So I urge a bit of caution and that in any attempt to tighten up or change the code of practice into a law we should have regard to the fact that the industrial relations scene is very different from how it was 35 years or so ago, which some noble Lords were talking about.
My Lords, we have had a very effective discussion on these clauses—effective because we are challenging why we need a particular proposal. The noble Lord, Lord Cormack, hit the nail on the head. These things often require careful consideration. My fear is that we have not had careful consideration; what we have had is a response to particular headlines and newspaper stories. As my noble friend Lord Monks said, where there are failings it is often because the law has not been properly applied or has not been dealt with. Many noble Lords are acutely aware that we should not rush to statute or invent new laws to address a problem that could be properly resolved under existing laws.
As we have heard, picketing is heavily regulated; unions must comply with statutory requirements for peaceful picketing. Section 220 of the Trade Union and Labour Relations (Consolidation) Act 1992 requires that they must act in accordance with the code. It is not a choice or an option—it is not voluntary but a requirement. As my noble friend Lord Monks said, “What is the problem?”
As other noble Lords indicated, and as the noble Lord, Lord Oates, said, it is clear from the impact assessment that the real target is the so-called leverage campaigns that we have seen. Yet these provisions and clauses are targeted at picketing itself, particularly after the wider consultation proposals were dropped. The problem that I have is that the impact assessment refers to allegations of intimidatory behaviour “not limited to picketing”. That is the key phrase: “not limited to”. The impact assessment and evidence that the Government are using for these proposals relate to matters that are not about picketing.
They are, of course, about actions that are already covered in law. The impact assessment refers to unsubstantiated allegations in the media and, of course, to the Bruce Carr review, which focused on leverage. But we must not forget that unions and their members are subject to laws on public order, such as protection from harassment and criminal damage. They are all existing laws. It is also a criminal offence for pickets to use violence or to intimidate individuals and their families. Hence the police go on the picket line, and they soon return if there is any problem, and action is taken. So why do we have these additional requirements?
We have heard that we should have a voluntary code—well, it is not voluntary; it must be complied with—on the face of the Bill. As my noble friend said, we want clarity in the Bill, but this is not going to add to clarity. Potentially, again, it is going to increase the involvement of the legal profession, and it might lead to challenges that are unintended. I shall come to the details of that in the Bill. I am disappointed that the noble Lord, Lord Pannick, is not in his place, because he wrote a very good article in the Times specifically highlighting these clauses. It is about coming back to this House with proper evidence about why this is required and why existing statutory provisions are not enough.
The clause will introduce significant additional restrictions on the ability of unions to organise peaceful pickets at or near a place of work. If the Bill becomes law, picketing will be lawful only if unions appoint a picket supervisor and notify the police of their name and contact details. The supervisors will be required to carry a letter of approval, which must be shown; they will be required to wear armbands and badges to identify them. As we have heard, on Report in the Commons the Government introduced amendments that removed the requirement on picket supervisors to show the letter of approval on demand to the police or any member of the public.
Ministers also clarified that it was not the Government’s intention that the letter of approval should include the name or contact details of the picket supervisor. The Government went further and announced that they did not plan to go ahead with additional restrictions, including the requirement on unions to publish protest plans 14 days in advance and to detail whether they proposed to use social media. They also decided not to require all pickets to wear armbands, and will not introduce additional criminal offences. While those developments are incredibly welcome, Clause 9 still violates the basic democratic rights of working people.
In our opinion, it is unreasonable for the state to require picket supervisors to undertake the requirements about understanding the full code. It is our opinion that a lot of these requirements are disproportionate and are also discriminatory measures, as they apply only to unions. As we have heard, the proposals have been roundly criticised by lawyers and civil liberties groups—and, of course, the Equality and Human Rights Commission has suggested that Clause 9, even as amended, may be in breach of Articles 11 and 14 of the European Convention on Human Rights.
My noble friend has also picked up the point that Clause 9 may substantially change the role of the police in relation to pickets and the union’s requirement to report the name of the supervisor. This becomes an issue where we have responsible action, with the union ensuring that peaceful protest and legitimate process to explain the reasons, and suddenly responsible people hear that their name has to be reported to the police and that the police will hold their name. They will ask what that means. We hear the Government talk about data protection, and say that this will happen and that will happen. A lot of responsible people will say that they are not sure. They will ask whether they should carry out this task in this proper way if it will result in these things being reported to the police. It increases the potential for responsible picketing not taking place. We will have to look into that seriously.
In the evidence session in the House of Commons, the National Police Chiefs’ Council has indicated that the new duties for unions to notify the police of the picket supervisor and the location of the picket would be unnecessary and could waste police resources. Deputy Chief Constable Charles Hall said:
“I do not see that as absolutely necessary, simply because we would expect those picket lines to be self-policing as far as possible. Involvement of police beyond that should be the exception, rather than the rule”.––[Official Report, Commons, Trade Union Public Bill Committee, 15/10/15; col. 93.]
Again, this was a point that my noble friend Lord Monks made: namely, that you are ensuring increased intervention and that resources are wasted. Police are there to ensure that the existing law is properly maintained. I know that the police would not hesitate to go in there.
We have put down a series of amendments, particularly in relation to those reporting requirements. They are matters that need careful consideration. Putting these requirements in the Bill again increases the propensity for legal challenge. If the letter of the law is not met, we will end up with lawyers intervening, legal challenges and the unions devoting resources to deal with that, instead of matters being properly resolved in the way that they are now.
I come back to the point: what is the problem that we are seeking to address? If it is about compliance with the law, let us ensure that we address that properly. If people are breaking the law they should suffer the consequences. We should not simply go back to the statute book and introduce laws that are not necessary and could potentially hinder good conduct, because good people will be put off doing a responsible job.
I am grateful to the noble Lord, Lord Stoneham, for his amendment and for bringing up his experience as a manager involved in a dispute.
The Government recognise that peaceful picketing is legitimate and lawful. We are not changing that. Equally, we believe that people have the right to go into work or about their daily lives without fear or risk of being intimidated. This is what we committed to in our manifesto. Picketing in Britain is governed by a framework of civil and criminal law, and is further guided by the provisions, as some have said, set out in the code of practice on picketing. I am pleased to say that most picketing is peaceful and, as the noble Lord, Lord Dykes, reminded the Committee, I said at Second Reading that most unions observe the provisions set out in the code. I say “most” as, regrettably, this is not so in every case.
A number of noble Lords have mentioned the Carr review, including my noble friend Lord De Mauley, and have gone through some of the submissions that were made to that review, which I will not repeat. The review was set up because of the intimidating tactics at Grangemouth, which I think shocked us all in 2013.
Furthermore, in response to a government consultation on this issue in July, nearly half of the 177 respondents stated that they had observed intimidating behaviour, either during picketing or more generally as a result of strike action. This included following staff from the picketing line, strikers bringing dogs to a picket line outside a school and alcohol being consumed on the picket line, leading to heightened incidences of intimidation. One union stated that more than half of its members had experienced intimidation of its non-striking union members.
Even more concerning was the increasing prevalence of intimidation online. Cameras are being used to take images of people crossing picket lines that are then posted online to name and shame them. These photographs are often accompanied by derogatory comments, images and innuendo. Another union, which similarly consulted its members, concluded that the current legal protections are not effective, particularly where low-level intimidation was involved. The CBI has also stated that its members have witnessed trade union activity that falls foul of current guidelines.
The Government are clear that this type of behaviour must be tackled, but it must be done in an effective and proportionate way. Therefore, while our recent consultation also sought views on other proposals, including a new criminal offence of unlawful picketing, we listened. The Government will not be taking these forward. Instead, we have committed to the fair and proportionate provisions of Clause 9. We will also update the code of practice, making clear what is expected in relation to social media, which on occasion has been subject to misunderstanding.
The provisions of Clause 9 are not new and unions will be familiar with them. They reflect the key aspects of the code on picketing, which has been around since 1992. Where they have been followed by most unions, these provisions have not raised concerns or prevented unions picketing. They are targeted at the activities of the minority of unions that do not follow the code. The CBI is equally of the view that while the code has encouraged positive behaviour, its current voluntary status does not ensure that all trade union members follow its guidelines. As we have heard, it has said that it would like to go further and that we should transpose the entire code into a statute. However, we are being proportionate and enacting only the relevant parts that will tackle the intimidation of non-striking workers. There has been a lot of interest in this area and I hope the Committee will bear with me as I go through the amendments briefly.
As the noble Lord, Lord Stoneham, said, we have discussed on many occasions whether we should have “may” or “must”. Neither of us has been entirely consistent. These reforms are preventive measures that should stop unacceptable and intimidating behaviour. They are directed at those unions that currently do not observe the guidance set out in the code. Making compliance with these requirements voluntary would completely undermine their effectiveness. It would also result in confusion with the guidance of the code of practice on picketing that should complement Clause 9.
The noble Lord, Lord Stoneham, asked me three questions, which I will seek to answer. He asked whether I accepted that the co-operation of unions is critical for peaceful picketing. I agree that it is. However, we want to ensure that it is easy for all those attending a picket line to identify who the responsible union official is and that is why we are asking for a picket supervisor to be clearly identifiable.
It is in the code, of course, but it is not in the legislation and it is not legally enforceable in the same way. As I have sought to explain, we have put the key provisions in the Bill so that they are observed. These are provisions that the vast majority of unions, as we have heard this evening, feel are entirely reasonable.
The second question related to concern that further legal action would mean that unions would distance themselves from picketing—I think I understood that correctly. The provisions in Clause 9 are perfectly reasonable and proportionate. The appointment of the picket organiser is already in the code and is well known to unions. I see no reason why unions should not comply with those provisions.
The current relationship of the law to the code is important. The code is taken into account in any legal proceedings. For example, if there is intimidation, and there is nobody in charge of the picket line, that makes it a more serious offence than if somebody was there trying to stop it, as is often the case with a picket supervisor. It is not just a matter of wishy-washy voluntarism. A criminal offence is being committed, and the provisions of the code are taken into account. It is quite a powerful weapon. To make it rigid statute law that there should be, say, six pickets but there are seven there and the police are supposed to do something about that, seems to be asking for trouble rather than calming it down.
I note what the noble Lord says. In a sense, I think he is making the same point as the noble Lord, Lord Stoneham, made with his third question about why the code is not adequate. Examples from the Carr review and elsewhere, which I went through earlier, reveal that the code is not always followed. By putting elements of the code on a statutory footing in the Bill we will ensure consistency across all picketing activity, which will improve union accountability and public confidence.
The noble Lord, Lord Collins, mentioned human rights. I think the allegation is that the legal obligation to appoint a picket supervisor and to show credentials to the police is discriminatory. Unfortunately, as the Carr review heard last year, there is concerning evidence that pickets organised by unions can and do lead to unacceptable levels of intimidation. In the circumstances, the Government consider it important that unions take all the steps they reasonably can to co-operate with police and ensure that pickets pass off peacefully. These provisions are not disproportionate and are justified under Article 11 and the ILO conventions. Rather than delay the Committee on this issue, I should say that following the debate at Second Reading I wrote to the chairman of the EHRC on the various human rights aspects of the Bill.
Amendment 42 limits the provisions of Clause 9 only to picketing that is directly organised by the union and will create unhelpful distinctions between union-organised picketing and picketing that is encouraged by the union. It would lead to unnecessary confusion between what will be perceived as different types of picketing. The law should apply to all picketing.
On Amendment 45, the Bill sets out a number of requirements which, combined, make the provisions in Clause 9 work effectively. The key to achieving this is the appointment of the picket supervisor, who needs to be familiar with the code so that he or she can act as a source of knowledge and advice.
This returns to the point about reasonable people. How will the requirement that the person be familiar with the code be tested? What knowledge is required? As my noble friend said, the person may think seven people rather than six is reasonable. What will the person be judged on there?
That is a good question, but my understanding is that provisions relating to familiarity are not new. They have been in the code of practice on picketing since 1992. Familiarity with the code is not an onerous requirement; it is a necessity for the person who is going about their business.
I turn to interaction with the police. It is important that the police know who the picket supervisor is, how to contact him or her and where the picket is taking place. The supervisor does not have to be on the picket line all the time, provided they can return at short notice. It provides an extra safeguard where the police will be able to contact the supervisor should an issue arise on the picket line that does not require police intervention but would benefit from the picket supervisor’s advice.
The advance notice of such details, in particular the location of the picketing, should help the police to plan their resources in the event that something happens on the picket line which requires their attention. The provision to inform the police reflects the language of the code, which has not given cause for concern. The police are, of course, bound by the Data Protection Act and any complaints about the mishandling of personal data can be brought before the independent Police Complaints Commissioner and/or the Information Commissioner. I am not aware of any complaints of this nature related to picketing.
I move on to Amendments 48 and 49 and the letter of approval. As the noble Lord, Lord Collins, said, this has been the cause of significant misunderstanding and concern. We have listened and made amendments. There is now no requirement for any of the picket supervisor’s personal details to be in the letter. Following consultation, the Government tabled an amendment so that the letter seeks only to approve the picketing activity. We further fine-tuned Clause 9 to clarify that only the employer to which the trade dispute relates and at whose workplace picketing occurs will be entitled to see this letter.
I fear that removing this requirement for a letter would result in confusion on the picket line about whether the union has endorsed the picketing and appointed a picket supervisor. I am not sure whether that was the intention, but the substituted wording in Amendment 49 removes the words,
“as soon as reasonably practicable”,
and would make the provision to see the letter more onerous.
On Amendments 51 and 52, the appointed picket supervisor will be the main point of contact during picketing and will act as a source of knowledge so that picketing remains peaceful. That is in everyone’s interest.
Finally, I come to the matter brought forward in the other place by the honourable member for Haltemprice and Howden. The media portrayal of this issue of armbands has been frankly mischievous. The key part is that the picket supervisor must be identifiable. The reference to an armband already sits in the code and is, of course, an indicative example. There are other ways of being identifiable, for example, wearing a badge or having blue hair. However, it is clear that there are concerns. I will therefore reflect further on this matter before Report.
Clause 9 seeks to tackle the intimidation of non-striking workers in a fair and proportionate way. It will result in picketing that is peaceful and consistent in the way it is conducted. I therefore ask the noble Lord to withdraw the amendment.
I thank the Minister for her reply to these amendments. I welcome the support my amendments had from the noble Lords, Lord Monks and Lord Collins, and the noble Baroness, Lady Donaghy. I shall pick up one point the Minister made. She said that by making the code statutory we are going to get consistency of approach to picketing because there will be a statutory obligation. Frankly, if she believes that, I will believe anything because you do not get enforcement or consistency just by making something statutory.
I shall pick up one point made by the noble Lords, Lord De Mauley and Lord Callanan, in relation to the Carr report. I read the Carr report, and I was amazed that there were not more instances of bad behaviour because this is a very difficult area to control and discipline. Unions play a very important part in exerting discipline and control in these situations. I shall take up one example because a lot of the examples they gave were examples of criminal behaviour that could have been prosecuted. Let us take the example of a person who is under the influence of alcohol on a picket line. Do we want the police to go in and pull that guy out, in quite an inflamed situation? I am sure they would not do that as their first option. They would want a responsible union representative who is the supervisor of the picket line—which is provided for in the code—to go in and deal with that person and quietly persuade him to leave the picket line. If he is unable to do that and the person does not leave, there is a difficulty either way.
The problem will be if that individual, having tried to do that, is then prosecuted because he has not fulfilled the statutory duty that is now laid down for picketing. Who in the union movement is going to take on the job of picket line supervisor when they could risk being taken through the courts? I have seen it happen to an individual from the shop floor. It destroys their life because they are not used to it, and it is irresponsible. Anybody who has seen that will know that nobody in their right mind in the union movement would easily take on that responsibility. The point that we are trying to make is that the code, by being voluntary, encourages people like that to help enforce consistency and order in the picket line, and if you make it statutory you will complicate the situation and deter that sort of behaviour. That is the problem. However, I withdraw my amendment.
Amendment 41 withdrawn.
Amendments 42 to 56 not moved.
Clause 9 agreed.
Clause 10: Opting in by union members to contribute to political funds
Moved by Lord Collins of Highbury
57: Clause 10, page 6, line 1, leave out “in writing”
My Lords, we have two groups dealing with this clause. In a later group, my noble friend Lady Smith will focus on the principles behind Clauses 10 and 11, the fundamental unfairness of the proposals, the timeframe for implementation and the impact on party-political funding—issues which are currently being investigated by your Lordships’ Select Committee. So I will not dwell too much on the points that will be covered by my noble friend.
In this group of amendments, I want to focus on the practicalities and the cost to the trade unions of implementing the clauses and on whether the Government have considered processes that would ease the administrative burden through more modern methods. I am acutely aware that the existing model rules of political funds have been laid down by statute and have to be approved by the Certification Officer. They state exactly what the union can or cannot do in terms of notices and how they are applied. What I find interesting is that the Government have, in effect, replicated the requirements for renewal notices in terms of the opt-in every five years. They will need to be in writing and must be delivered to the union’s headquarters or branch office, in person or through an agent, or by post. They repeat the existing provisions in the political fund rules. In terms of an opt-in, if the Government pursue that route—obviously, I am not addressing the principles here—it would seem sensible to look at what is the current practice in the way people pay their subscriptions, notify their union and communicate with it. It would have been an opportunity to look at that.
If we are to be committed to these processes where they must be in writing and delivered by post, such processes will prove time-consuming for members and incredibly cumbersome for unions, which will not be able to take advantage of automated processing systems. I have seen the letter from the noble Baroness to the noble Lord, Lord Forsyth. Before writing that letter, she needed to look at the model rules that unions are required to comply with and see what they can do. The current opt-in provisions are laid down. Of course, unions have had to conduct statutory ballots on whether they have a political fund every 10 years. Within that process, obviously unions have a huge communication responsibility, particularly on the purpose of a political fund. I have often tried to explain to people that a political fund is not a separate pot of gold. It is a part of a union subscription that a member gives to the union that may be spent for political purposes. Those political purposes have changed over the years, particularly since PPERA, and I will come to some of those issues in later clauses.
I want to focus on the practical implications. Regarding the opt-in renewal notices and the requirement for them to be in writing, I hope the Minister will be very clear about what that means. The Government’s impact assessment has stated that the cost of doing this will reach more than £2.4 million every five years. The TUC believes that that is a substantial underestimate; from my own personal experience, I tend to agree. It is a huge cost. That cost is not going not to the Labour Party or anywhere else; it is not going on union services and union benefits. It is an additional cost and a regulatory burden that needs to be taken into account. Even though there is a requirement to opt in every five years, the members, even when they have opted in, will have an opt-out at any point.
My big concern is that currently the Bill says that unions would have to implement these provisions within 12 weeks. That is an incredibly short time in which to be able to mount such a huge exercise. Clause 10 will require unions to revise their rulebook. In this country, unions are not part of the state. They may have been in some other nations, but in this country unions are independent. They govern themselves and they have rulebooks that are overseen by their members. In order to comply with this measure, rule changes would need to be agreed by members, with a process of approval through the Certification Officer. It is completely unreasonable for the Government to expect unions with a political fund to convene a special rule-making conference within three months. Most unions hold such conferences once a year or every two years, and in some cases it has been once every five years. Of course, in some unions the executive committees have delegated authority.
I am sure that we will come on to that requirement. One thing that this debate has to deal with is the existing requirements in relation to trade unions. Any code of practice or model guidance more than 30 years ago was made in the context of 10-yearly ballots on whether a union should have a political fund. A union’s practices in terms of notifying and making its members aware of opt-out provisions are laid down by statute. They are not set out simply in a code; they are laid down in model rules specified by the Certification Officer and the unions must comply with them. For example—this is my point about some of the regulatory requirements— if a method of communication were electronic, it would not necessarily be compliant with the union’s existing rules and you could have the ridiculous situation where the unions were challenged for breaching them. Regarding the operation of the opt-out, you would need to ask how many complaints there had been and how many people had been dissatisfied with their rights.
Not only was I an assistant general-secretary of the Transport and General Workers’ Union and Unite but I was general-secretary of the Labour Party. I recall that in 2008 the Scottish National Party, the Conservative Party and, I think, the Liberal Democrats mounted a campaign to ensure that members knew of their right to opt out. It did not result in a huge number of opt-outs because I think people were perfectly aware of the procedure. It is a bit like some members of the Conservative Party asserting that the relationship between the unions and the Labour Party is a secret. If it is such a secret and is not known, all I can say is that the Daily Mail certainly seems to make enough of it. During the last general election campaign, I saw Conservative Party literature that made it absolutely clear who funds the Labour Party.
I have absolutely no problem with being totally out and proud of the relationship that the Labour Party has with the trade unions. In 1900, the trade unions established the Labour Party. They were the members of the Labour Party for the first 18 years. There were no individuals in the party. It was a federated body whose purpose was to ensure representation in Parliament. Over the years, things have changed. The last time these sorts of proposals were implemented was in 1927—
I am grateful to the noble Lord for giving way. I have the honour of serving on the committee which is currently studying this matter, and I suppose that we should be grateful to the Labour Party for suggesting this. One factor that we have been considering a great deal is the Collins review, which I believe was written by the noble Lord. Correct me if I am wrong, but did that not propose moving from an opt-out to an opt-in system, albeit over a slightly longer timescale?
If the noble Lord wants me to give a long lecture on the Collins review, I shall be very happy to do that. I am glad that the noble Lord, Lord Maude, is here because, prior to the Collins review, he and I sat down for nearly a whole year and talked about party-political funding. During that time, never once did we think of changing the current arrangements by statute. Opting in and opting out of a political fund is not simply a matter about party funding, and of course not all unions are affiliated to or give money to the Labour Party—they use their political funds for a range of purposes. My concern about these proposals does not relate simply to Labour Party or party-political funding; we will come to that.
The question of the current ability to opt out of the political fund arrangements is dealt with in the amendments. Should we reinvigorate the voluntary code in addition to the 10-yearly ballots? You can hardly say that during those ballots people are not notified about the existence of a political fund.
I know that I am a lot older than I look, but I remember when the original 1984 proposals came in. In fact, I was partly responsible for implementing them. There was a genuine concern in some quarters, with people asking, “Do people know about political funds? Do they know what we’re doing?”. In some respects it was a challenge for the trade unions—as with all threats, they are often challenges. The 1984 proposals made unions go out and make a strong case for their political funds. What was the result of the 1984 Act? It was not that some unions decided not to have a political fund. Every single union that had a political fund in 1984 adopted the resolution, through postal voting by their members, and kept their political fund. But the 1984 provision also made other unions think that perhaps this would enable them to have a voice, which they had not had so far. As a consequence of the 1984 Act, we ended up with more unions having political funds than had been the case before, so the challenge was important and it was delivered upon.
If there is a problem concerning the right of members to say for religious, personal or other reasons, “I don’t want any of my union subscription spent on political purposes”, then let us address it properly. The Collins report was about the relationship between the Labour Party and the trade union movement. It asked: has that relationship since 1900 worked properly? In 1920, we adopted a constitution that introduced individuals into the party. There was then a dichotomy, with individuals and affiliated organisations, and the question of the balance of responsibility between the two groups. That is our tradition; it is our heritage. We are not going to turn the clock back and say that how we have become what we are is unimportant. We need to understand the journey and, sometimes, that journey leads us to changes that need to be made; for example, when we reformed the way that we conducted our business. That is the context of the Collins report.
My noble friend Lady Smith will address the point about whether to opt in or opt out of political funds in the next group, so we will have two bites of the cherry—the next group but one, sorry; I forgot about the amendment in the name of my noble friend Lord Campbell-Savours. I do not know how the Minister covers so many groups. The point is that there are issues that need to be addressed here. The Government are imposing, with a 12-week transition period, incredible burdens on unions and making it extremely difficult for these provisions to be implemented. In some respects, it makes one feel that the whole purpose of the exercise is to make it so difficult that not many people will opt in. I know that my noble friend will address this, but when Sir Christopher Kelly and Hayden Phillips looked at this issue in the round, they concluded that a transitional period was necessary and that it should be five years. That was in the context of taking big money out of politics, donations and interparty talks.
I want to focus on the specifics. The amendments I have put down are about the ways we can ensure that, if this is going to go through, it is not deliberately causing difficulties for the union or individual members. Why is there a five-year opt-in period? Why do people have to do it again? If someone does not opt in again after five years, why is the default position that they are out? What is that provision for? Bear in mind that, in addition to the requirement to opt in, the 1984 Act will remain on the statute and requires unions to conduct a ballot every 10 years on whether they have a political fund. Why is there a five-year review? It is unnecessary and, I think, being done deliberately to ensure that people will not be in the political fund.
One issue I have some concern with is the Government saying that there is no evidence that there would be a substantial attrition in membership resulting from this lapsing after five years. But look at any evidence about making people do something positively. It is a bit like signing a donor card and then being told that you will have to sign it again every five years. I know what the medical profession would say to that: it would not be very happy. I do not know why this is being applied here at all.
Through the details of each of my amendments, I want to probe exactly what methodology the Government are proposing. Perhaps the Minister can explain what “in writing” means. She has had tremendous responsibility in digitising the economy and making sure that we have modern methods of communications—apart from, as I heard in the background from my noble friend, for the unions. Unions cannot adopt modern methods of communication or proper processes that will ensure success. No, it has to be “in writing”.
If this requirement does come into effect, why have the Government not considered the possibility of applying it only to new members? Why are the unions being given the huge task of going back to members who have understood themselves to be part of the organisation to ask them to opt in? The Government are making retrospective legislation, in some senses. Why has a gradual approach not been looked at? These are issues that we need to look at in some detail.
My Lords, I feel that, in a sense, these debates are in the wrong order. The noble Lord is talking about the various ways in which, if the Bill is brought in, it might be improved. The noble Lord, Lord Monks, has tabled an important amendment which goes to the heart of the matter and the fundamental reasons we are here in the first place, and I think the Minister will have something to say on these issues as well. I do not know how we are going to deal with these issues. They are very important, and I understand the sensitivities and deep feeling involved. It would be a good idea if we could somehow get the amendments in this debate in the right order. I do not know whether to foreclose on this, but perhaps we should deal briefly with these particular amendments and then get to the heart of the matter.
I am grateful for that intervention. The noble Lord, Lord King, is right. I could not predict the order that we would take the amendments in, and I am happy to leave these on the table, as it were, so that we can look at the practical implications and move speedily on to the next groups, where we will be able to address the principles in relation to the model rules. I beg to move.
Are we not going to have a preliminary debate on this? I want to make the same point as was made by the noble Lord, Lord King. We have already had a long debate on this section and have decided that the matter will be referred to a Select Committee, which is now taking evidence. Therefore, I do not intend to make a long speech on these amendments, for the very reasons that the noble Lord, Lord King, said.
I do not want to go into all the arguments as to why the Select Committee is important, but, in parenthesis, and so that I do not have to say much more in this series of debates, I want to say three things. First, the Select Committee received evidence from the Certification Officer when it was in public session. As I understand it, he said two things. One is that he was never consulted, which is surprising if we are trying to look at responsible legislation, because he is going to have to implement it. The second thing he said is that he has had to deal with very few complaints on opting-in and opting-out issues.
Secondly, I want to make a general point about the amendments in this group, and particularly the reference to “electronic means”. If we want a way to encourage people not to opt in, it ought to be in writing because, these days, nobody responds to correspondence in an efficient and effective way, but they do respond to emails. To have the Minister, a pioneer of the digital age, advocating that all the replies should be in writing is, frankly, taking us back to the horse and cart. That is very important.
Thirdly, government Ministers do not have to employ an army of special advisers to advise them on the best way of doing the Labour Party down. I am sure that there are behavioural scientists who advise the Government on how people respond to government correspondence. They know exactly what happens when you take a certain action. If you stick to the writing, rather than going electronic, you are just encouraging the destruction of the funding of the Labour Party.
Nobody has more interest than this side of the House in getting political funding reform, I can tell you. But as we said in the debate, we want to make sure that this is a fair package which is agreed. If you do not, it will be open warfare in the future and your individual donations will be under attack—
My Lords, I propose that we adjourn and that I answer the questions that have been raised by the noble Lords, Lord Collins and Lord Stoneham, when we discuss the amendment after next.