Clause 3 - Ballots: 40% support requirement in important public services

Part of Trade Union Bill – in a Public Bill Committee at 2:45 pm on 20th October 2015.

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Photo of Stephen Doughty Stephen Doughty Shadow Minister (Business, Innovation and Skills) 2:45 pm, 20th October 2015

We have already touched on aspects of clause 3, but there is a more substantive debate to be had on it. As Committee members will know, the clause seeks to introduce a requirement that in “important public services”, 40% of those entitled to vote must vote in favour of industrial action, and that there must be a 50% turnout. In certain important public services, that will mean that if 50% of members participate in the ballot, 80% of those voting must vote in favour in order for a strike to take place. For example, if 500 members are balloted, at least 250 members must vote in the ballot and 200 must vote yes for industrial action to go ahead.

As I have said, if the Government were serious about increasing participation, whether in important public services or anywhere else, they would be taking the measures that we are proposing. I certainly believe, and I am sure my fellow Opposition Members would agree, that the Government’s real agenda is to prevent public sector workers in particular, on whom the legislation will have a significantly greater impact, from raising legitimate grievances and opposing changes to their pay, pensions and rights at work planned in this Parliament. One might even suspect that the Government had such plans in their agenda for the months ahead.

While politics are clearly at the heart of the Bill and this clause in particular, the Government have other legal obstacles to manoeuvre. As I outlined in the debate on the last clause, many legal experts believe that treating abstentions as “no” votes for industrial action is undemocratic and potentially illegal, and conflicts with international standards. International supervisory bodies such as the International Labour Organisation state that only votes cast should be taken into account.

The next hurdle for the Government will be of particular interest to noble Friends and Members in the other place when they read the debates we have had on the Floor of the House and in Committee. The Conservative manifesto in the 2015 general election referred to making provisions regarding only “essential public services”. That was also the specific term used in Her Majesty’s most Gracious Speech, delivered on 27 May 2015:

My Government will bring forward legislation to reform trade unions and to protect essential public services against strikes.”

In a previous life, I was involved in drafting a line in Her Majesty’s speech. Obviously, it was subject to Her Majesty’s approval, and I am glad she delivered it. A great degree  of rigour and attention is paid to the specific wording, so that Her Majesty feels confident with it and it reflects the Government’s intent very clearly. That is an important point.

“Essential” is the word used in International Labour Organisation conventions, and it has a very narrow legal definition. To quote an ILO general survey, the definition is restricted to services

“the interruption of which would endanger the life, personal safety or health of the whole or part of the population”.

Transport services, public transport, public education, port authorities, postal services and others all fall outside that category. Given that, I very much suspect—perhaps the Minister can enlighten us when he gets to his feet—that the Government realised that the legislation was poorly drafted and that using those words would leave it vulnerable to serious legal challenge, so they sought to row back, instead changing the wording to “important” public services, as we now see in the Bill. Disturbingly, those public services are to be defined by the Secretary of State in as yet unseen secondary legislation.

A number of categories of services are referred to in the clause using very broad terms, such as “health services”. There is

“education of those aged 17 and under”,

which we discussed in the devolution debate; I do not want to go over old ground, but that causes particular issues for differing education systems across the UK. “Fire services” are referred to, as are “transport services”—in a very general sense, and we have already heard how those are excluded from the ILO definition. There is

“the decommissioning of nuclear installations and management of radioactive waste and spent fuel”,

and “border security”.

Those provisions, alongside the consultation document, are so wide that they could apply to nearly every area of publicly funded activity. One might think that the Government have taken their chance not only to ensure that they can potentially avoid legal challenges—although I think this could still be subject to one—but to draw the definition as wide as possible so that everybody would be forced into the 40% threshold. What assessment has the Minister made of whether it is predicted that the other place will still feel bound by the Salisbury convention, given that the clause clearly breaches a Conservative manifesto commitment, let alone the specific text that was in the Gracious Speech?

What assessment has the Minister made of the effect that the proposals will have on women? We have discussed that at length already, but TUC research suggests that nearly three quarters—73%—of trade union members working in important public services, as defined by the Government, are women. I imagine that Committee members will vote on the proposals shortly; does the Minister think it is appropriate that they do not yet know for certain to whom they will apply? We have to take our responsibilities as legislators in this place very seriously. We do not know what this secondary legislation is, but the Government are again saying, “Trust us, trust us. We’ll be all right. We’re going to put this stuff down and you’ll be fine with it.” That is not acceptable. The Bill has been scheduled for some time; the Government  have had plenty of time to introduce the regulations and they have not. What we know for certain, as I said, is that the proposals will impact on public policy areas that are wholly devolved, and that will have the implications we have discussed.

At this stage, it is also important to challenge one particular myth that is being peddled by those in favour of the Bill. It is a particular favourite of the hon. Member for Uxbridge and South Ruislip (Boris Johnson) who, on Second Reading, suggested that unions are required to meet a 75% threshold in Germany. For the record, that is not accurate. Some German trade unions have adopted rules requiring 75% support for industrial action among members, but those are decisions taken by the union within its own democratic structures, not imposed by the state.