Trade Union Bill (Third sitting)
The Committee consisted of the following Members:
Chairs: † Sir Edward Leigh, Sir Alan Meale
† Argar, Edward (Charnwood) (Con)
† Barclay, Stephen (North East Cambridgeshire) (Con)
† Blenkinsop, Tom (Middlesbrough South and East Cleveland) (Lab)
† Boles, Nick (Minister for Skills)
† Cameron, Dr Lisa (East Kilbride, Strathaven and Lesmahagow) (SNP)
† Cartlidge, James (South Suffolk) (Con)
† Doughty, Stephen (Cardiff South and Penarth) (Lab/Co-op)
† Elliott, Julie (Sunderland Central) (Lab)
† Ghani, Nusrat (Wealden) (Con)
† Howell, John (Henley) (Con)
† Kennedy, Seema (South Ribble) (Con)
† Mearns, Ian (Gateshead) (Lab)
† Morden, Jessica (Newport East) (Lab)
† Morris, Anne Marie (Newton Abbot) (Con)
† Prentis, Victoria (Banbury) (Con)
† Stephens, Chris (Glasgow South West) (SNP)
† Stevens, Jo (Cardiff Central) (Lab)
† Sunak, Rishi (Richmond (Yorks)) (Con)
Glenn McKee, Committee Clerk
† attended the Committee
Deputy Chief Constable Charlie Hall, National Police Chiefs’ Council
Steve White, Chair, Police Federation of England and Wales
David Palmer-Jones, Chief Executive Officer, SITA UK
Commissioner Ron Dobson CBE, QFSM, London Fire Brigade
Byron Taylor, National Office, The Trade Union and Labour Party Liaison Organisation (TULO)
Public Bill Committee
Thursday 15 October 2015
[Sir Edward Leigh in the Chair]
Trade Union Bill
We start by considering the motion to make an amendment to the programme motion. I remind Members that the Standing Orders provide that the Minister may move such a motion and that if any member of the Committee signifies an objection, the proceedings on the motion will lapse.
That the Order of the Committee of 13 October 2015 be varied by the insertion of “; NASUWT” at the end of the third column of the 13th row (Thursday 15 October Until no later than 3.00 pm) of the Table in paragraph (2).—(Nick Boles.)
Examination of Witnesses
Deputy Chief Constable Charlie Hall and Steve White gave evidence.
Our two witnesses are Steve White, who is chair of the Police Federation of England and Wales, and Deputy Chief Constable Charlie Hall of the National Police Chiefs Council. You are both very welcome.
Q 242242 Good morning and welcome to the witnesses. There is a serious number of provisions in this Bill, particularly in relation to picketing. One of the consultation documents contains proposals on supervising social media comments and potential criminalisation, although we are not clear on the Government’s position on those issues. Do you believe that there are problems with the way in which the Bill could be policed and the additional stresses and strains it would place on policing, which is obviously already subject to significant pressures?
Deputy Chief Constable Hall: In the majority of cases, there is no real need for the police to be involved with industrial disputes and picketing. Indeed, our stance is that we would wish to avoid it if we can. Many pickets and industrial disputes run without any contact or involvement with policing. Clearly, there are occasions when police have been, and need to be, involved to keep the peace and prevent disorder. There are provisions in the Bill for police to be notified of picket lines, and my reading of that is that, in pretty much every instance, we would be notified of industrial disputes and picketing. My position is that 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.
On social media, I have seen some detail in the Bill about that. I do not believe that there is a need for the police to be able to vet or censor social media posts. Clearly, there may be a role for policing at some point. If things are posted that commit criminal offences, we would investigate in the same way that we would investigate other social media posts.
Q 243 Steve, do you share those views?
Steve White: Yes, broadly. There needs to be a recognition of what is practically possible in terms of the level of resource that we currently have, particularly on the social media aspect—goodness gracious me. I am on Twitter, and I sometimes wish that perhaps we did have the powers to deal with social media comments from time to time, but, goodness me, that would be massively complex. From a policing perspective, it would be a dangerous route to start going down if we say that the police should have a role to play in that.
Of course, the relationship between local police officers and employees of local firms is key and crucial to this. It would be a travesty if we ended up going back to the days of the 1970s and ’80s when, whether rightly or wrongly, the police service was seen as an arm of the state, which of course we absolutely are not. I certainly echo Charlie’s comments that these disputes should be largely self-policing.
The only other comment that I would like to make is about the requirement to inform police in relation to picket supervisors, for example. I question that. I mean, it is not for the Police Federation to say what laws there are in the country, of course. However, I personally question whether there would be more appropriate ways for that information to be recorded, so that the police absolutely do not have to be involved at all, apart from keeping the peace when necessary. Perhaps local authorities could play a part in that more appropriately. And of course, the sad fact of the matter is that we are now seeing increasing mission creep, whereby the police service has to step in where other services are providing gaps. So we do not want to design something that brings that about, when perhaps there are more appropriate agencies to do that work.
Q 244 Given what you have said, do you both think that there is a risk that with some of the provisions—particularly those about being able to demand letters, anyone being able to demand a letter, the wearing of armbands and all sorts of stuff—that if things got out of hand, they could draw the police into situations where multiple people demand things? As you say, preferably, the police should stay out of these situations. Do you think that there is potentially a risk of a breakdown in order around protests that otherwise would have been conducted and self-policed, as you have described?
Steve White: The point is that if there is a requirement for a notification to be made to the police, what happens when that does not happen and how do you know if it has not happened? Presumably, the police will have to investigate that. That is the issue. Otherwise, there is no point in having that requirement; it is about enforcement.
I think that it is justified for us to have a view in relation to the practicalities of enforcement, because we are the ones who are charged with enforcing the laws. So I think it is right for us to be able to comment on that. My question is: what would the sanction be? Then, of course, immediately you will drag the police service into other aspects, which I am not convinced is the intention of the Bill. It is the mission creep element.
Deputy Chief Constable Hall: I think that my response to the question would be “possibly”, but I would not over-emphasise that it will cause problems. When police need to attend picket lines, there is some utility in being able to identify who is supervising or in charge of that picket line; certainly, that would be helpful. But I do not believe that it is necessary to have notification directly to the police in advance of every picket line being set up, and that is simply because, as I have already said, I do not see us needing to attend in the vast majority of cases anyway. However, a mechanism by which we can easily identify who to speak to when we arrive would be of assistance.
Q 245 I have one last question. Would it be your opinion that, in a general sense, industrial relations and the involvement of the police have significantly improved over the last 10, 20 or 30 years, compared with some of the situations that we might have seen in the past, and that we do not want to jeopardise that type of relationship? I think it applies more broadly to the policing of protests, as well, that we have got to a very good situation and that we do not want to put that at risk.
Deputy Chief Constable Hall: Clearly, there is some history here, going back. The police role must be impartial in these industrial disputes, without doubt, and I would like to think that is the position that we have taken in recent years. I agree that that should be maintained. Our role there is to balance the lawful rights of all parties, and I would want to ensure that role continues.
Steve White: I would agree with that. In fact, before this session, I was reflecting—I have been a police officer for 27 years—and trying to remember the last time that we really had something of major significance. We were talking about the dispute involving petrol tanker drivers, and the amount of planning and the number of issues that we had to deal with then. That is probably the last time, but of course that was largely carried off in a very low-key and successful way, although there was a lot of resources and planning behind it, which I think shows how much things have improved.
Okay. I am already getting a list of people to ask questions, and we only have half an hour. You do not both need to answer questions unless you really want to, and I ask members of the Committee to try to limit themselves to one supplementary question, unless they are really bursting to ask another. I know that the next questioner will be very brief and to the point.
Q 246 Thank you, Sir Edward. May I stay on the same subject? If a dispute gets out of hand, you are required to go and police it. Does the notice period in the Bill not give you advance warning, so you can tell whether policing is likely to be needed? I cannot see what the problem is with the notice period.
Deputy Chief Constable Hall: I think my experience is that in past situations in which we have been required to be involved, or in which we planned to be involved, notification has usually come forward fairly quickly, particularly through the employers, who say, “We believe that we may have issues when this picket line meets.” Those situations are relatively rare, in terms of when picket lines sit. Yes, of course notice helps us to plan, but my experience is that planning does not need to be done in the vast majority of cases, simply because of peaceful picketing. Steve talked about the planned fuel dispute. A lot of planning went into the ability to police picket lines at that time, and as you know, it never quite materialised into a dispute. Those are the sorts of circumstances where advance notice would be very helpful.
Q 247 May I follow up with one question? I am still struggling to see what harm the notice period causes.
Deputy Chief Constable Hall: I do not believe it causes any harm, as such. The challenge for policing is whether it is necessary for us, how we then administer it within police forces across the country, and whether we could obtain that information in other ways, either through local authorities or directly with the employer. As I say, we do not see any direct harm in receiving it, but we feel it could be discharged in other ways.
Q 248 It may appear that I am shouting at you, but I am not; it is so the other members of the Committee can hear me. I apologise.
I have two quick questions. Do you both agree that the proposal to allow agency workers to come in and replace striking workers would result in increased tensions in the workplace and that the police would have to become more involved in those sorts of issues? What more resources would the police need to police some of the aspects in the Bill?
Deputy Chief Constable Hall: I do not think it is for the police service to determine the merits of whether agency workers should come in or not. We know from disputes we have policed in the past that the mention of agency workers tends to increase tension within picket lines. I think there is certainly the possibility that that could be the case if agency workers are brought in to cross picket lines. Clearly, within that we would need to judge each situation on its merits, and potentially we would need to increase police resourcing accordingly.
Steve White: It probably would not surprise you to hear me suggest that our current resource levels in policing would make it extremely—
Mr White, you are talking to us.
Steve White: Sorry, let me try that again. You will not be surprised to hear that, from a federation perspective, we are saying that in terms of the resource requirement needed, we would find it very hard to cope with current resource levels should there be large-scale disputes. We are finding it extremely challenging to cope with day-to-day policing with the current resource levels, and the likelihood is that they are going to become squeezed even more. If there is an increased requirement for police involvement around the policing of industrial disputes, that would be more challenging.
As you are a main Opposition spokesman, Mr Stephens, if you want to have the same amount of time as Mr Doughty, I am very relaxed about it. Are you happy?
Q 250 Thank you for coming in today. I want to focus on the point about identification. Mr Hall, you said that it may be of benefit to be able to identify who to speak to and know who is the organiser. Is that not currently the case, in your experience of dealing with disputes?
Deputy Chief Constable Hall: I think it is generally the case that you can find out that detail, but I would not say it is always the case. Certainly, when we attend, our ability to find who is supervising the picket line and discuss and negotiate with them about the way the picket is conducted enables people to continue to cross the picket line if they wish to do so and enables those on the picket to approach vehicles or individuals trying to cross the picket line. It is always helpful if we can fairly quickly identify who that supervision is. Generally we can do it, but that is not always the case.
Q 251 To follow up, I am not trying to pass comment on whether the parts of the Bill that deal with social media are right or wrong, but you use social media for investigations at the moment. People can commit offences using social media. That is currently the case.
Deputy Chief Constable Hall: Yes, it is, and we certainly investigate, all across the country, offences that have allegedly been committed across social media. What we do not do is to censor or vet tweets and social media messages before they are sent out. Once things have gone out, however, we may investigate. Clearly, we could do that in an industrial dispute, as we could in any other area of business.
Q 252 On social media, I do not think that this appears in the Bill, but it was certainly referred to in the Department for Business, Innovation and Skills consultation document on the Bill. The consultation document referred to having to give notice of use of social media in support of a picket, and it referred to having to give notice of the content of social media used to support a picket. That concept is interesting, because if you have to give notice of content on Twitter, you potentially introduce the question of secondary and/or wildcat tweeting in support of picketing. Have you got any comments about that?
Steve White: Goodness gracious me. That fills me with dread and fear, I have to say, in terms of having to vet tweets in advance—crikey! I do not think that that is anything that we want to be getting involved with. I am sorry; I just find that quite bizarre.
Deputy Chief Constable Hall: I think I agree. I do not know how we would manage that. I do not know that it is appropriate for us to do that, because we do not do it in any other area. How we would manage that, I really do not know. I think our only role would be when things have been sent out. If people are potentially committing a criminal offence by sending those out, there is a role, potentially, for us to investigate those, as there is with any other use of social media.
Q 254 You have both mentioned limited resources. I just want to ask you whether you think it is right that your limited resources are used to get involved in large-scale strikes in the country. Looking at the tube strikes, for example, do you think that it is right that police resources are used to manage the strikes when only a minority of people have asked for them in the first place?
Deputy Chief Constable Hall: As Steve has already said, in policing we have got many priorities at the moment, and industrial disputes, if I am honest, are probably not at the top of the list of what we need to deploy resources against. What I would say is that we have a responsibility to keep the peace and uphold the law, and that can see us deployed into all sorts of different situations. Clearly, industrial dispute is one of those.
If there are industrial disputes where that role is necessary, then I would say that we will continue to need to deploy resources, but it does take resource away from other areas that I am sure all the police and crime commissioners around the country would consider to be our priorities, such as dealing with vulnerable people and reducing crime. This is not a natural area that falls into those priorities, but if we need to deploy resources to keep the peace, of course we will continue to do so.
Q 255 So you are being made to deploy resources from other incidents to manage strike action, when only a minority of people have asked for those strikes?
Deputy Chief Constable Hall: It is inevitably going to do that. When we have a limited and reducing resource base, large-scale deployment of police to industrial disputes is going to pull officers from other duties and responsibilities.
Steve White: The only comment I would make is that a distinction needs to be made between managing an industrial dispute—in terms of who is in charge, informing the police and managing it—and responding to an incident of disorder. We would respond to an incident of disorder whether it is in relation to an industrial dispute or a pub fight. Of course, we have a duty to respond to that, and we need to ensure that we have got the resources in place to do that. As Charlie has already said, the desire would be for these industrial disputes to be self-policing. If they are not, we are going to need resources and we do not have them.
Q 256 So you would have to deploy resources from elsewhere. You mentioned industrial disputes being self-policing, and you also mentioned, Chief Constable, that it would be easier if you were able to identify individuals who might be in charge if you came across a scenario. Wearing an armband would be one easy way to identify people, would it not?
Deputy Chief Constable Hall: Quite possibly.
Q 257 And you do not think that is detrimental to their human rights—having to wear an arm band?
Deputy Chief Constable Hall: I think that is probably for others to decide. I think what I have said is that when we attend being able to find out fairly quickly who is in charge and responsible for that picket is helpful to us. So there are many different ways I think that could be done.
Q 258 It saves money and saves time, does not it?
Deputy Chief Constable Hall: Well, we can quickly get in, negotiate and try to resolve whatever reason we have been called there for.
Steve White: We must not forget the use of good policing skills in this. Most of the time it is not rocket science. You can quickly establish who is in charge, whether they are wearing an arm band or not; but of course this is about the management of it, rather than responding to an incident. I suspect if there is major disorder breaking out you do not necessarily need to go and find who is in charge. You need to deal with the disorder. That is the only comment I would make.
Q 259 You also mentioned that it is very rare to get into a difficult situation. Most of the time these situations are self-policed and well managed; but have you come across scenarios where people wanting to cross the picket line have felt intimidated? Have you had to police that situation at all?
Deputy Chief Constable Hall: I think policing across the country will certainly have come across that. In my experience, and what I have had fed to me, sometimes at the mere presence of a picket line individuals can feel intimidated; but that is not necessarily, given that picket lines have protection within the law, something that the police are going to intervene about. I think there is a whole spectrum of intimidation, and some people who may wish to go into work will simply feel intimidated because of a presence there, and in my view that is not something that policing would then intervene with. We start to intervene where disorder is looking likely, or there are actual criminal offences that we have on the statute book that we need to deal with.
Steve White: Can I just come back on that? In terms of adding balance you can have the perception that a picket line could be threatening, and I am thinking about the footage from large industrial disputes of the past—the miners’ strike, for example. The last picket that I saw was local to me, in the south-west of England. It was in relation to a rail dispute, I think it was. I have to say that the atmosphere on the picket line was one of very light-hearted jolliness—people tooting their horns and shouting and waving, and so on and so forth. I only add that from a question of balance. Clearly we would not be involved in policing that picket line; but of course, as Charlie has said, if things overstep the mark and start to impress on the peace of it, then of course—
When I was practising as a criminal barrister we were not allowed to ask leading questions. There is nothing out of order about leading questions, but our witnesses are so skilled that one probably does not need to lead them, and I sure Mr Doughty, who has the next question, will not.
Q 260 There has been some quite unhelpful rhetoric from Ministers about the Bill and industrial action in general. Although industrial action has been at significantly low levels for a generation, the Minister for the Cabinet Office has talked about setting up hit squads, and standing ready to use the Cobra system to deal with industrial action. What are your thoughts about those comments? Do you think it is appropriate that we are talking about using the Cobra system, which is a key national resilience mechanism, to deal with what are extremely low levels of industrial action?
Steve White: My reaction to that—I am not experienced at Cobra; I know that Charlie is—is that we have got to remember that policing in this country is wholly independent of the state. I think that is the important element to recall around that. There is not political control of the police service in this country, and I think it is important that that should continue. Policies and procedures that the Government want to put in place are a matter for the Government, but I will just make that point.
Deputy Chief Constable Hall: I would agree with that—that chief constables are independent in terms of how they deploy their resources, and we must remain impartial to the merits of whatever the dispute is around. I think I can perhaps understand why Cobra may, for some disputes, feel the need to meet to sustain services, but the police role within that will always remain impartial. If there is disorder to be dealt with, or there are criminal offences to be dealt with, we will do it, but our role will be as much to facilitate the lawful picketing as it will to facilitate the lawful carrying on of business activities. Our role is right in the middle of that.
Q 261 Specifically on Cobra, in your view would it be a very small number of instances where it would ever be appropriate for that system to be brought into play?
Deputy Chief Constable Hall: That is ultimately for Government to determine, but I see that there are often local disputes where Cobra would never need to get involved and manage that. The Government will make decisions as to when they need to activate that machinery.
Q 262 Thank you both for being here. I have a question for the deputy chief constable. I think you mentioned that your primary responsibilities are to keep the peace and uphold the law. Obviously there have been situations where that has not been the case on picket lines, and we heard evidence on Tuesday about that and talk of intimidation. I was looking around at how you deal with other organised protests, such as marches, and it says clearly on the Met police website:
“Organisers should try to give as much notice as possible”,
and provide the names and addresses of organisers. Given that, would it be a help or a hindrance for you to have the notice period in the Bill of two weeks and the identity of someone organising a protest? It seems pretty clear that it would be a help, rather than a hindrance, but I wanted to confirm which of those you think it would be.
Deputy Chief Constable Hall: Well, I think there are degrees of protest. If you look at protest across the country as a whole, there are some big, national-level protests, but almost on a day-to-day basis many smaller protests take place, too. We are certainly not notified of all of them, nor do I think it practical for police to be notified of them. Many protests are self-policed and are not ones that we would particularly need to get involved with.
Certainly for the bigger scale protests—the ones that are likely to involve some element of policing—some advance notice to plan around that is necessary. Very often, our intelligence structures provide that information to us anyway to enable plans to be put in place. Some of that comes through organisers notifying us, and some of it comes from information and intelligence that we receive into policing.
Q 263 Am I right in thinking that it is helpful, then? The Metropolitan police ask for as much information as possible.
Deputy Chief Constable Hall: It is certainly helpful when plans need to be put in place, but I would say that not all protests are of that scale and not all protests on a day-to-day basis receive attention.
Q 264 I have a quick follow-up for Steve. When you were describing the picket lines that you have been involved in, you were saying that people were thoroughly enjoying themselves and having a jolly. Part of why we are all here, and the Bill is here, is to tackle the issue of strikes being held on low turnouts and out-of-date ballots that then inconvenience millions of people across the country. We have been hearing from union representatives that, for the most part, they understand that strikes are a last resort and are taken very seriously. Do you also agree with that? The description that you gave just a minute ago about people having a bit of a jolly and thoroughly enjoying themselves, while inconveniencing millions of people, seemed a bit out of kilter with what we have been hearing from others.
Steve White: The context in which I answered that question was in relation to whether picket lines were threatening. I was just giving the balance that in my experience that picket line was probably not one of the threatening ones. In terms of whether a strike should be called and what the level of turnout should be, that is quite simply not a matter for the police service. That is a matter for others; our primary concern is that the peace is kept and that things happen within the law.
I just want to pick up on your previous point to Charlie in relation to notification. It would be great if the police service had more than two weeks’ notice for every single resource requirement that we ever have, but we do not. We have to have resources in place to deal with the unexpected. That includes whether or not we have been notified of something. As Charlie said, that does not necessarily mean that we will have to be used or deployed.
Okay. We have two minutes and two more questions. Jo Stevens and Seema Kennedy, just a brisk question from each of you, please.
Q 265 I have a question for both witnesses, if I may. You have both talked about the pressures on operational resources at the moment. Given the additional workload for the police that will come in if the Bill becomes law, would you rather have that, or not?
Deputy Chief Constable Hall: Well, I think what we would rather be able to do is concentrate on the priorities set down to us by chief constables and police and crime commissioners. There is potentially some additional work for recording the notifications that come through, but I do not think I would want to over-emphasise how significant that is likely to be. That will vary, depending on where you are in the country and those mechanisms. Where we would be concerned is if there is an expectation that at every picket line there is a higher level of police presence. If that is the case, that will impact on other priorities.
Okay. Very quickly, Mr White.
Steve White: I would probably answer it as no.
Q 266 On Tuesday, we heard from one of the opposition witnesses, Dave Smith, who made very serious claims about police collusion in blacklisting. He said, among other things, that the police are going to keep a list of picket supervisors and pass it on to big businesses. How would you respond to those very serious allegations?
Deputy Chief Constable Hall: I would say that I cannot see us doing that.
Good. Thank you very much, gentlemen, for your evidence, which is much appreciated. Thank you for taking the time to talk to us. We are very grateful.
Examination of Witnesses
David Palmer-Jones and Commissioner Ron Dobson gave evidence.
Good afternoon. We are now joined by David Palmer-Jones, who is chief executive officer of SITA UK, and Commissioner Ron Dobson of the London fire brigade. You are both very welcome.
Q 268 I have a question for each of you. First, Commissioner, could you outline your relationships with the Fire Brigades Union, how you feel they are at the moment and whether you think the Bill will help or hinder them?
Commissioner Dobson: Relationships with the FBU are, in my opinion, positive. We have some issues we need to deal with, both locally and nationally, in relation to Government challenges to the firefighters’ pension scheme, which is still unresolved. Generally, at a local level, our relationships are reasonable. The London fire brigade has had experience of industrial action—back in 2010 in relation to a local dispute, and in the past couple of years in relation to the national pensions dispute. I have to say that the conduct during those two disputes was very different. There is a stark comparison between the two. We are always trying to improve our relationship with the Fire Brigades Union. There are some difficulties at the moment, but we are working hard to resolve them.
Q 269 David, I understand that there has been a series of disputes involving your company. Can you tell us a bit about one of the disputes that is going on in relation to Teesside and Merseyside at the moment? I understand that trade unions have recently met with the company and requested a full forensic audit of your workers’ terms and conditions, but apparently you have refused it on cost grounds. The trade unions involved have offered to pay for the audit, but it has been refused. Could you tell us a bit about the dispute and why that is the situation at the moment?
David Palmer-Jones: Okay, I can do that. I will be as quick as possible. We are in the process of building an energy-from-waste plant up in Teesside. We have been investing in Teesside for the past 15 years: we have probably spent £700 million and employed 500 people in that area, and we are continuing to do that. I am in the process of doing a piece of work—a PFI-type contract—for Merseyside Waste Disposal Authority, which is progressing very well. We are almost three years into the build now, so the build is almost complete. About a year ago, we were targeted by some local activists who are running a campaign around “pay the rate”, which is some form of national protest that is looking at pay on very specific types of national agreements. At the moment, we are a minority shareholder—a 40% shareholder—in that particular element, and I will take over the operation of that facility early next year.
Q 270 I asked a very specific question, though. I understand that there has been a request for a forensic audit of your workers’ terms and conditions. Why have you refused the willingness to pay for it?
David Palmer-Jones: We have not refused. We have already done a forensic audit. As you can imagine, it is quite a complex audit to do. We have more than 60 different contractors involved in the project. We have a head contractor and 60 others, all of which bring specialist services to build the £220 million project. On behalf of Merseyside, we did that analysis. I met with the national union representatives recently, and I had the opportunity to show the officers and the elected members of Merseyside—our customer—that information, which satisfied them. I made a genuine offer. It was controlled by ACAS, and we asked for ACAS to come in. I was very happy to share and pay for a forensic audit of the wages on that site through ACAS. That was refused by the unions. Therefore, I am left in a rather difficult position with an ongoing dispute. Our company has now experienced 29 protests, at both the Wilton site and—
May I interrupt? This is not a Select Committee, Mr Doughty; it is a Bill Committee, so your questions have to go laser-like to the Bill.
Q 271 The reason I wanted to ask the question was to find out why you think you have been asked here to give evidence on the Bill. Is it so that your poor industrial relations with a whole series of unions can then be used as an example to be reflected in full-scale national policy making? Is that why you think you have been invited here today?
David Palmer-Jones: I hope I have been asked here today to look at some of the grey areas—not the black and white areas about intimidation or numbers of pickets and so on—and perhaps a changing tactic on protests and the disruption they cause my company in continuing to invest in Teesside. I think that is why I have been invited; I hope so.
Q 272 The project at Wilton, of course, uses CNIM Clugston as the engineering, procurement and construction contractor. Are you aware of allegations that CNIM Clugston is paying certain members of staff—contractors who they employ and who are non-British workers—€6 an hour?
David Palmer-Jones: That is a complete fallacy. It is untrue. I have done the audit. I have seen the information myself and presented it to Merseyside council and the elected members. They are satisfied, as my customer. I have no obligation to show the unions. I offered, very genuinely, to involve ACAS, so that they could see it. They refused. They want to do their own audit.
I have made the point that I have to trust Members, in a sense. They are in charge of their own questioning, and I am not going to draw people up, but they have to remember that there must be a focus on the Bill all the time. Our witnesses must be aware that we are talking about the Bill.
Mr Blenkinsop has heard you, Minister, and I am sure both he and the witnesses will focus on the Bill.
Q 273 For other contracts in Wilton—there are other power stations being built that I am aware of—are blue book terms being adhered to on that site, and will you show local MPs that evidence?
David Palmer-Jones: We have said that we will share that evidence with ACAS. We continue to pay national rates or above national rates, and we are happy to do a forensic audit for ACAS.
Q 275 Mr Palmer-Jones, in relation to the code of practice on picketing, could you elaborate on how social media is used to intimidate workers at Wilton?
David Palmer-Jones: There is a large social media presence in Wilton, orchestrated by the head of this activity—this protest. They use extensively Facebook in order to call to arms their local protesters, and they use it also to spread particularly damaging comments about not only my staff but other members associated with this particular construction.
Q 276 Could you describe some of the effects that has had on the workers?
David Palmer-Jones: Clearly, people feel very intimidated. They have now moved from Wilton to our other sites within the north-east, where we have a number of energy-from-waste plants. They attended yesterday another protest—the 29th protest—so they seem to be changing tactics. They disrupt local people. They stop the traffic. They cause an undue amount of disruption, and it is not nice for people to have to go through picket lines, with people only yesterday saying, “We know where you live. We’re going to visit you.” It is not at all something I can condone. We have to protect my staff. I have come here to protect my staff. It is really important that you understand the normal situation. I am not an employment lawyer at all, as you can hear; I just see the effects on our business and on my feelings about whether I continue to invest in Teesside in the future.
Q 277 I have some questions for Commissioner Dobson. Could you confirm whether you believe that the evidence collected in the Department for Business, Innovation and Skills consultation on intimidation in the fire and rescue services is pretty thin? Could you also confirm that according to the Carr review, the decline in allegations of intimidation between the two disputes you referred to was down to better contingency planning? Given that you have intimated that industrial relations are more positive, would that not demonstrate that the Bill is unnecessary?
Commissioner Dobson: In relation to the evidence submitted to the Carr review, the majority of that is in relation to the London fire brigade during the 2010 local dispute. The evidence there is not thin; it is quite substantial in terms of the intimidation and bullying that some non-striking workers and people who were providing our contingency plan experienced. I would not say the evidence was thin. I do not have any particular basis on which to compare it with other industries, so the evidence is as it is.
My view is that the relationships with the Fire Brigades Union are difficult at times, but they are being managed well and are improving. We are working very hard to improve relationships, and I do not see anything in the Bill that would particularly make relationships between management in the London fire brigade and the Fire Brigades Union worse. There are potentially some safeguards within the Bill that would help both the London fire brigade and the Fire Brigades Union in respect of our relationships.
Q 278 Okay. The Carr review said that allegations of intimidation decreased between those two disputes because of contingency planning. Do you agree with that?
Commissioner Dobson: There are a number of reasons why bullying and intimidation decreased in the national dispute. There are differences between a local dispute and a national dispute, and the feelings they generate among the people going on strike and the unions. We learnt some lessons in terms of the management of the strikes during the 2010 dispute. It is true to say that, managerially, we have put some things in place to try to prevent intimidation of non-striking workers and the blockade of workplaces. We learnt some things and we think we did well.
During the 2010 dispute, because of some of the behaviours in relation to picket lines and striking workers elsewhere in London following around our contingency crews and trying to intimidate them at the incident ground, we sought to go to court to have the code of conduct on picketing enforced. We did not actually need to get the court order in the end, because we managed to reach agreement with the Fire Brigades Union prior to getting to court. Since that agreement was made and the code of conduct was adhered to, we have seen much lower levels of intimidation and bullying. The conduct of the picket lines and the strike generally in the past two years has been in line with how we would expect people to behave.
Q 282 Mr Palmer-Jones, you were just touching on intimidation and the picket line you saw yesterday. Could you tell us a bit more?
David Palmer-Jones: I was not actually there yesterday, but we had reports back from my staff. Again, there is a movement from the Wilton construction site to our own sites and threats of other, secondary protesting. That was why I was very keen to come today, to explain the grey area that could expand.
Q 283 It would be very helpful to hear more about that.
David Palmer-Jones: This is something that is very much condoned by the unions. When I meet with Merseyside and those unions, I am meeting the senior national levels of the union, which in some way tacitly approve of the tactics being deployed up in Teesside at the moment. We have a situation where council employees who are delivering household waste vehicles to the site feel quite intimidated to go across a picket line and a protest that is very much dressed in the union colours and waving union flags. They do not want to cross what is not an industrial action. This is very important to understand: there is no industrial action on any of our sites, yet I am still facing the difficulty of a sponsored, wider protest that is of a more national scale.
Q 284 I just have a specific question, given what the commissioner has been saying. Can you confirm whether during the 2010 dispute any FBU members were actually arrested or prosecuted for their behaviour in picketing; and, secondly, can you confirm whether any agency staff brought in were arrested or prosecuted for their behaviour?
Commissioner Dobson: No, nobody was actually prosecuted.
Q 285 Was anybody arrested?
Commissioner Dobson: I am trying to think; I cannot recall anybody being arrested, but they may have been—but certainly nobody was prosecuted, and the police did investigate a number of things that occurred on some of the picket lines and elsewhere.
Q 287 Given that you are not aware of the wider circumstances, could you perhaps write to us and tell us what happened during that dispute, given that it has been referred to a number of times, with agency workers who were brought in? I think that is directly relevant to the Bill, because there are obviously proposals that the Government are putting forward on the use of agency workers. I think it is important to understand the sort of tensions that are created. Do you think there is potential for tensions being created more widely in industrial disputes by agency workers being brought in, particularly in professions such as yours where there are specific sets of health and safety concerns and specialities?
Commissioner Dobson: I think there are tensions when agency workers are used. Our emergency fire crew contract, which provides our contingency arrangements, is provided by an external company. We contract it out in order to meet the requirements of the current employment legislation. That obviously does increase tensions, because striking workers see somebody else doing their job; I think it does increase tension.
The difficulty is, in an industry such as mine where we are providing a critical emergency service, we do need arrangements in place to cover public safety if the fire brigade is on strike. Therefore, we did not really have much choice. Other fire brigades outside London use other arrangements; but they have the opportunity to use people who maybe were retained fire fighters. We do not have that opportunity in London and we needed to make sure we had a robust contingency plan in place. That does create tensions, inevitably, but I do not think we have any option on that at the moment.
Q 288 You have both referenced how keen you are to ensure good industrial relations in the work you do and the duty you have to your staff, to protect and look after them. We have heard a number of references from both sides, and from both of you, about intimidation. Can you give us a flavour of specific examples that have stuck in your mind of the form that intimidation has taken—what was said, what was done and how that played out?
Commissioner Dobson: In terms of physical intimidation, during the 2010 dispute—and I have to be clear that this did not take place in the recent disputes—we saw the emergency fire crew operatives being refused access to fire stations and being intimidated: followed to incidents when they were actually attending emergency calls. They were followed there by striking workers and intimidated at the incident ground.
We have seen photographs being taken and posted on social media of people who were working during the strike, with comments such as, “We know who you are; we know where you live.” We have seen intimidation of some of the emergency fire crew by taking photographs of them and trying to find out what their names were, and by comments such as, “Don’t come back to London because we know who you are.” So there is a range of intimidation using social media.
All those instances where these things have happened have been reported to the police, but I refer back to the previous people giving evidence about how difficult it is to investigate and bring to a conclusion any offences over social media. So while it was investigated, unfortunately, there was not any result to the investigations; but they certainly took place and the evidence exists and actually has been shown to the Committee before.
David Palmer-Jones: I think from my side it is really the fact that it can occur away from the site itself. That is the bit that concerns us the most. We have had instances where cars have been damaged, threats of violence to our supervisor, and threats to other members of staff, who are not members of the union, who continue to work. That causes a lot of disruption and disharmony in the workforce; and we do not have many strikes, I can assure you—perhaps one in the last 10 years. When it does happen, there needs to be some form of control, very much specifically around secondary action outside the local area where the picket would happen. That is the most worrying for me.
Q 289 I have a quick follow-up for the commissioner, and answer this as you wish. Did you have any reason to believe, or any evidence, notwithstanding that there were no arrests, that those who were either officials in or members of the FBU were those taking the photographs and carrying out that action?
Commissioner Dobson: I have no evidence to suggest that, I am afraid.
Q 290 I have a couple of very quick follow-ups to what you were saying, Mr Palmer-Jones. On the incidents you have been talking about in relation to Teesside, can you confirm that that is not industrial action?
David Palmer-Jones: It is not industrial action.
Q 291 Therefore, can you confirm that the Bill does not apply to those instances, because they are not pickets?
David Palmer-Jones: The worry, looking at paragraph 37 —again, I am not a lawyer—is that it is the unions that are really supporting the action. Therefore, they are—
Q 293 Thank you. Can I clarify one other thing you said? You said that officials of trade unions were tacitly approving the tactics deployed. Can you tell me which trade unions were doing that? We have the general secretaries of the big trade unions involved in your company here later today giving evidence, and we would like to put that to them.
David Palmer-Jones: The ones that I met, together with Merseyside—the customer—were Unite, GMB and UCATT.
Q 294 Commissioner Dobson, in your earlier remarks you said that nothing in the Bill will worsen relationships in your view, but there are safeguards in it that will be of benefit. Do you welcome the threshold for action, which is one of the most important parts of the Bill?
Commissioner Dobson: I do welcome it, but it is important for the Committee to recognise that I cannot think of an industrial dispute with the Fire Brigades Union in recent years where that threshold would not have been met, so I do not think it would have had any practical impact on previous disputes.
Q 296 Just on what you said to my colleague Mr Argar about examples of intimidation, you said that in 2010 access was stopped to a fire station in an emergency.
Commissioner Dobson: Access was stopped for our emergency fire crews—our contingency service. They were stopped from getting on to our fire station. In 2010, our plan was to deploy emergency fire crews from fire stations, but we had such difficulty in getting the emergency fire crews on to the fire stations because of the picket lines and striking workers who were barricading themselves on to fire stations. In one instance, they took a dog on to the fire station to stop emergency crews getting in.
Q 297 This was while there was a fire?
Commissioner Dobson: No, this was during the strike. During the fires, we had some instances where the striking workers followed emergency crews to incidents, damaged fire engines en route and tried to intimidate the emergency workers, while they were trying to deal with an incident. In some cases, they were trying to deal with actual fires and they were being obstructed by striking workers.
Q 298 I have a question for Mr Dobson. You have talked a lot about examples of intimidation during the 2010 dispute, and you also said that you had a private meeting with Mr Carr. You will be aware that the impact assessment for this Bill drew on the Carr review to justify what is in the Bill. I am sure you are also aware that Mr Carr was unable to make any evidence-based proposals or recommendations for change because of the lack of a significant body of evidence to support any recommendations for change. In your meeting with him, did you give him the examples of intimidation that you have described?
Commissioner Dobson: I did, yes.
Q 300 Was it because a majority in the Greater London Authority had decided that you should not give evidence to Mr Carr?
Commissioner Dobson: There was no decision about whether or not I should give evidence, because it was never presented to elected members in that way.
Q 301 At its meeting on 29 January this year, the GLA indicated that your evidence appeared in the Carr report in contravention of the wishes of a majority of assembly members. Do you deny that?
Commissioner Dobson: My giving evidence to the Carr review was never presented to the London Assembly for their view on it. The fact that I had spoken to Mr Carr was discussed when the Carr review was published, but it was not discussed beforehand.
Q 303 Following on—a very brief question, if I may—in relation to the same dispute, can you tell the Committee what you believe led to the dispute happening in the first instance and what action you took to try to prevent it from occurring? I am aware that you attempted to de-escalate the dispute by docking the pay of 368 staff; that was later found unlawful by an employment tribunal. Can you tell us a little about that?
Commissioner Dobson: There was a dispute over the start and finish times of shifts. We sought to change the start and finish times of shifts in order to increase productivity. We negotiated fully with the Fire Brigades Union on that but were unable to reach an agreement, which led to a strike ballot and that led to strikes. During the industrial action that took place, via either action short of a strike or a strike, some members of staff took actions that were against their contracts and were not covered by the ballot, so some workers’ pay was deducted. The employment tribunal has found only in the cases of three staff at the moment; the remainder of cases are still subject to discussion with the Fire Brigades Union. Let us be absolutely clear—the Committee needs to be aware of this—that the employment tribunal has listened to the cases of only three workers, not the others.
Q 305 The hon. Member for Cardiff Central seemed to suggest that it was appropriate for the Greater London Assembly to have gagged you and prevented you from giving evidence on any matter that falls within your professional responsibility. You said very clearly that the assembly did not and that there was never any consideration of that. Nevertheless, had they tried to do so, do you think that that would have been appropriate?
Commissioner Dobson: No, I do not. My contract is with the London Fire and Emergency Planning Authority, so it would be appropriate for it to take a view on whether or not I, as one of its employees, should give evidence, but not necessarily the London assembly.
Q 306 And even if that authority had taken that view, would you, nevertheless, have felt it was right to prevent you from talking to an independent inquiry?
Commissioner Dobson: My personal view would be that it would be wrong to prevent me from talking to an independent inquiry, but, as a matter of fact, no decision of that nature was ever taken.
John Howell is champing at the bit, but he is such a gentleman that I know he will want Nusrat Ghani to go first.
Q 309 Were any firefighters’ lives at risk at that time, when they were trying to carry out their duty?
Commissioner Dobson: No, I do not think that their lives were at risk. It was the emergency fire crew workers—the contingency force—who were followed and intimidated. I do not think that their lives were put at risk, but they certainly felt intimidated.
Q 313 Mr Palmer-Jones, earlier you threw away a line about the intimidation you had been facing being likely to affect your ability to invest. Would you like to explain that?
David Palmer-Jones: As I said, together with others, I have invested probably around £700 million and I employ more than 500 people in that area. I have the ability to invest more, but when faced with the sort of intimidation and protest that we have been suffering, I have to think twice about where I spend my money. I am currently in the process of employing people from SSI: I have taken on 20 people and am looking for others to help me to run that plant, and we are taking on apprentices. But you can see why, when faced with an uncontrolled set of continual protests—the 29th—we would think twice about whether we bother to invest in that area. It is an area that we have supported for the past 15 or 20 years.
Q 314 So you would welcome putting the existing code of conduct into a statutory form?
David Palmer-Jones: We would have to. Again, it is important that you widen and capture this particular grey area. You really need to look at the fact that the unions should be held responsible if they are actively supporting these types of protest.
I will stop you there and Chris Stephens can ask the last question.
Q 315 Just a quick question to Commissioner Dobson. In an answer to Mr Cartlidge, you indicated that you agree with the thresholds in the Bill. Is that your private opinion or were you speaking for you organisation?
Commissioner Dobson: That is my opinion.
Thank you very much for your evidence, gentlemen.
Examination of Witness
Byron Taylor gave evidence.
Our last witness this morning is Byron Taylor of the national office of the Trade Union and Labour Party Liaison Organisation.
Q 316 For the avoidance of doubt, I have already declared an interest, but obviously, I am a member of the Labour party and of the GMB, which is a member of TULO. Byron, could you tell us why you believe the provisions in the Bill break the established conventions on arrangements for political party funding?
Byron Taylor: The Bill is a fairly partisan attack on Her Majesty’s Opposition. It does significant damage to the funding of the Labour party, and I think that is in breach of existing parliamentary convention.
There is a long history here. Back in 1948, Winston Churchill said:
“It has become a well-established custom that matters affecting the interests of rival parties should not be settled by the imposition of the will of one side over the other, but by an agreement reached either between the leaders of the main parties or by conferences under the impartial guidance of Mr. Speaker.”—[Official Report, 16 February 1948; Vol. 447, c. 859.]
That was reinforced by Margaret Thatcher in a Cabinet meeting on 9 February 1984, when she said:
“legislation on this subject, which would affect the funding of the Labour party, would create great unease and should not be entered into lightly.”
There is a fairly well-established history of parliamentary convention that says parties should not interfere in matters affecting the Opposition. Even as recently as 1998, the Conservative party’s submission to the Committee on Standards in Public Life stated:
“The Conservative Party does not believe that it is illegitimate for the trade union movement to provide support for political parties.”
The Bill, in its current format, is designed to do exactly that and to stop the trade union movement being involved in political parties. That is a really important concern, because there is not only an established parliamentary convention.
There are very solid grounds about the freedom of association: article 11 of the Human Rights Act 1998, the European charter of fundamental rights and, dating right back to 1948, the universal declaration of human rights, to which this country is a signatory, which says:
“Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society”.
Q 317 May I ask a specific question? There is an important point here about the distinction being made between the rules governing company donations and corporate donations to political parties and trade union donations to political parties. Could you say a little bit about the difference between the conditions that will be brought about by this Bill and what applies to, for example, companies making political donations—for example, the ability of shareholders to opt out of those decisions?
Byron Taylor: Indeed. There is no right for shareholders to opt out of political donations. A company is required to make a political resolution once every four years. A private company can do it by simple resolution. A public company does it at the annual general meeting, but the reality is that a single political resolution is made every four years.
If you contrast that with the requirements upon a trade union, there are significant differences. The trade union membership here in the UK already enjoys fairly substantial protection. We call it the triple lock. In the first instance, a trade union member can opt in or opt out of the political fund at any time, and that has been the case here in the UK since the 1940s. In addition, they can participate in the representative democracy of their trade union if they are unhappy with how a trade union is operating their political activity. They can participate in the structures of the union and seek to change how that activity is conducted. Finally, there are political fund review ballots, which operate once every 10 years. That is a simple one member, one vote ballot on the membership. The membership, should it so wish, can choose to disestablish any existing political funds, so there are several safeguards for trade union members in the operation of political funds that are not comparable with those upon companies.
This is a critical point. If you look at some of the donations that come in from companies—the one I draw reference to is Bearwood Corporate Services, which made 177 donations to the Conservative party, totalling £5.3 million. If you look at the ownership structure, it goes back to two faceless companies in the British Virgin Islands. We have no idea who is behind those donations.
Q 318 Can you give us some practical examples of how trade unions are transparent about their funding—the amounts that are given and so on—at the moment, and why the provisions in the Bill simply are not required?
Byron Taylor: Trade unions are already required to publish any donations to a political party under the auspices of the Political Parties, Elections and Referendums Act 2000. In addition, they are already required to provide significant information to the certification officer about the number of members in the fund and the amounts paid into the fund and so on. There are already significant reporting requirements on the trade union movement about how political funds are expended. That is an important and clear point. What is proposed in the Bill represents a serious change to the way in which trade unions operate without any basis in evidence to do so.
Q 319 The Bill’s provisions would have to be adhered to within three months of Royal Assent and its commencement. Do you think that is a fair amount of time for any organisation to comply with such significant changes to law?
Byron Taylor: No, I really do not. Three months is an extremely short timescale. Let us bear in mind that trade unions are, primarily, industrial organisations; politics is very much a secondary function for them. If the Bill is passed unamended, we will be asking 4.9 million people to opt back into the political fund in a three-month period. To set that against a couple of other examples, the recent changes relating to plastic bags supplied by retailers were enacted in Ireland in 2002, in Wales in 2011 and in Scotland in 2012. The coalition Government initiated the change in the UK in 2013 when they conducted the regulatory impact assessment and the Deputy Prime Minister announced the policy in October 2013. Companies have had a significant time to be aware that the changes are likely to happen, and as of 2013 they had two years to prepare for that.
Another example is self-assessment; everyone who completes a self-assessment is required to submit their returns by the end of January each year. They have a clear 12-month notice period that they must effect that change, and a significant Government-sponsored media campaign is run to inform people that they need to get their returns in by 31 January. If they fail to do so, a fine of £100 is imposed. Despite all those safeguards, this year alone, 890,000 people failed to fill in their self-assessments. We are asking 4.9 million trade unionists to opt into the political fund in a three-month period dated from Royal Assent, and I think that is unacceptable. There is also the issue of retrospection. Those people joined a collective organisation and opted, as part of their decision to join a trade union, to become part of the political fund. I see no clear public interest test that requires trade unionists to opt in to the political fund of their trade union when they have already joined that trade union in the past, and I fail to see what reference the Government are making to human rights on this matter. In 2002, the Solicitor General referred to the public interest and human rights when he spoke of retrospective legislation, and I believe that the Bill is such legislation.
Q 320 Just a couple of questions, Mr Taylor. Can you confirm that, in many cases, the workplace will be multi-union and that some unions will be affiliated to the Labour party, and some will not? Therefore, many people already have the choice, because they can choose which trade union to join depending on whether they want to fund the Labour party or not. I should have congratulated you on the fact that you separated Scotland from the UK when you referred to plastic bags, and I welcome that.
I must emphasise to you, as someone who is a trade union activist, that if trade union members are uncomfortable with the trade unions’ relationship with the Labour party, it is up to them to raise that, and there are plenty of democratic opportunities for them to do so. It is also up to the Labour party to justify to the trade unions why it should be funded. The political funds are not just about the Labour party; there are many organisations that receive money from political funds, such as HOPE not hate, so what impact would there be on them?
Byron Taylor: Multi-union representation in the workplace is a reality. I used to organise British Bakeries down in Avonmouth docks, where we had seven trade unions on site. There are a clear number of trade unions, and members can join the appropriate one as they see fit. As for the political fund and its use, it is important to recognise that trade unions do not simply use the political fund for the purposes of the Labour party. There are 52 trade unions here in the UK, 13 of which are affiliated to the Labour party. In the other trade unions, there are a good couple of million people out there paying the political levy to allow their union to conduct political activity. That is what the political fund is for; it is for the conducting of political activity.
There is a proud history for the trade union movement of political activity: the campaign for the eight-hour day, the minimum wage, universal suffrage, campaigns for the NHS, campaigns for housing, peace movements after the second world war—all those things have been supported out of the political fund, and they are appropriate uses for it. What is being proposed is to strip trade unions of that political voice to a great extent. My real fear about this Bill is that it is designed to reduce participation in political activity. Such activity is well established. The European Court ruled just eight years ago that it is perfectly legitimate for trade unions to conduct political activity. The Court said:
“They are not bodies solely devoted to politically-neutral aspects of the wellbeing of their members, but are often ideological, with strongly held views on social and political issues.”
That is a legitimate role for trade unions.
Q 321 Can I ask you a question about clause 10? Some people are arguing—wrongly, in my view—that clause 10 equalises the arrangements, mirroring the situation in Northern Ireland. Do you agree that the provisions in the Bill go well beyond the current practices in Northern Ireland, which require trade union members on one occasion to contract into paying into the political fund—I repeat, on one occasion—and they are not required to renew their opt-in?
Byron Taylor: Sorry, can you just repeat the last bit?
There is a suggestion that clause 10 mirrors the arrangements currently in place in Northern Ireland about opting in. The question I am asking is: do you agree that the provisions in this Bill go well beyond what is currently in operation in Northern Ireland? Trade union members there only have to opt in on one occasion.
Byron Taylor: Indeed. The Northern Ireland situation is a leftover from the 1920 provision that moved towards an opt-in. Given the unique historical and political circumstances of the Province of Ulster and Northern Ireland, I think there are particular reasons why that exists in the current format.
The Bill, as it is currently proposing to change the law here in the UK, is significant. When people join a trade union, they will have to opt in. If they are already members of a trade union and already paying the political levy, they will have to re-opt back in. We will find ourselves in a situation where people have to renew that every five years. I fail to see why that is required in a fund where you can opt in or opt out at any time, where you have the representative democracy of the union and where you have a 10-yearly political fund review ballot. It seems to be another over-extension. We are going to be in a situation where you can opt in or opt out when you first join the union, you can opt in or opt out at any time, you have to renew every five years, and you have to renew through a political fund ballot every 10 years.
What level of regulation is required on trade union political funds, because they clearly are the most highly regulated political funds in the western world? If you compare them to some of the transparency arrangements that apply to companies, I think they are overbearing. For example, there are unincorporated associations that donate to the Conservative party—one that springs to mind is the Carlton Club, which has donated £1 million to the Conservative party in the last five years—and there is no clarity over who those people are who are paying those moneys and raising those kinds of sums. That is just one example.
Q 322 From your comments earlier, it sounded to me—I do not want to put words in your mouth—as though you were basically saying that the opt-in system that has been proposed within the time period is effectively unworkable. I would be interested in your comments on that.
Byron Taylor: I think it would be very difficult for the trade union movement to conduct those kinds of operations in a three-month time scale.
Q 323 What would be the impact of that if it were implemented?
Byron Taylor: There are questions about what is actually being proposed and the format. For example, on the face of it, the Bill requires written communication, but I am not sure if that is what the Bill actually means. One of the things I would particularly like clarity on in the coming weeks is what is the requirement. If it is implemented in the format that is suggested in the Bill, I think you are going to see a significant drop in political fund payers in the trade union movement. The net effect of that will be to remove a whole series of people from the political process in the UK. At a time when we are talking about declining engagement and how we can encourage people to be more engaged in the political process, what we are doing is reducing the number of people who actively engage in politics in some format. That is very bad for democracy in terms of participation and in terms of the funding gap it will create in British politics.
Returning to the Churchill convention, which requires parties not to interfere in matters of other parties without consent, we are going to find ourselves in a situation where the Labour party struggles to compete in electoral terms with the Conservative party.
Q 324 I am intrigued that the Government Minister and the Whip have been going round gagging their Members from asking questions about what is a significant part of the Bill. Mr Taylor, why do you think Government Members are unwilling to ask questions about a significant part of their own Bill?
On a point of order, Sir Edward. It would be completely unparliamentary for any Member to seek to gag another Member. I assure the Chair that no such attempt to gag Members has taken place. I request the hon. Gentleman to withdraw that suggestion.
The point has been made. Let us just live in peace and harmony.
I see a Conservative Member wants to be ungagged.
Q 325 May I finish my question? Mr Taylor, are you surprised that there appears to be very little Government interest in what is a significant part of their own legislation? What do you think the reasons for that might possibly be?
Byron Taylor: That is a very interesting question. As I said at the start of my evidence, as far as I am concerned, this is a partisan attack on Her Majesty’s Opposition and forms part of a broader attack on civil society. If you look at the concerns being raised about charities’ political campaigning or what is being said about the BBC—it is a deeply partisan attack. It is deeply damaging to our society, and I have real concerns.
I return to the Committee on Standards in Public Life hearings in 2011. Those of you who have read the transcripts will know I gave evidence to that Committee. The argument put forward by the Conservative party and the Liberal Democrat party at that point was that there should be individualisation of political fund payments. The Committee took the majority view that
“such a condition would be a disproportionate intrusion into the constitution of the relevant trade unions”.
That is a really important principle to me—freedom of association and the right of trade union members to come together, form a trade union and determine their own rules and constitution. The Bill is interfering directly in that human right, which I think Amnesty and Liberty made reference to yesterday.
Q 326 I want to raise a specific technical point. Mr Taylor, you said this is an attack on funding and that funding will go down. Surely, if people have to opt in, funding will only go down if they had not wanted to opt in in the first place.
Byron Taylor: Funding will go down because people have busy lives and the trade union movement is then required to contact every single member to require an opt-in, when many people already believe they are opted in.
Q 327 But if they have been happy with that donation, your donation levels will not be affected.
Byron Taylor: Many people are happy to contribute to the political work of their trade union. It is a fairly well-established principle among trade union members that they pay to the union, and in return they expect good advice and representation.
Q 328 But you seem to be saying, “If we actually ask people whether they want to contribute, we’re worried we’re going to find out some of them didn’t want to.” You are admitting that.
Byron Taylor: No, I am absolutely not, because we have not put it to the test yet.
Q 329 Then funding will not go down, on that basis. If they are all happy punters and happy to contribute to the Labour party, your funding will not go down.
Byron Taylor: You are saying this is not about the Labour party, and that is your immediate problem, because what we are talking about is the opt-in to the political fund of the trade union movement. What is going to happen is that trade unions are going to have to spend an excessive amount of time and resources re-contacting all of their members to ask them to sign back into the political fund in written form. This is a really important point: it is being proposed that everybody will have to do this in writing. In an electronic age when people should be allowed to communicate via telephone, internet or other forms of communication, this Bill is proposing that everybody has to sign a piece of paper. That will drive down participation; we know that for a fact.
Q 330 Forgive me. You talk about people’s rights. You are suggesting that your funds are going to go down. That must mean that some people who are currently contributing would not want to be contributing. In other words, by defending that, you are defending the fact that someone should involuntarily be contributing to a political party against their rights. You are talking about rights; you should surely accept that point.
Byron Taylor: When people join a trade union, there are things that go with being a member of a trade union, including its political work. Let us go back to the history of the opt-out, and 1913, and the legislation and why it was primarily introduced. The opt-out was introduced in 1913 to ensure that those workers who were working in closed-shop arrangements, who did not want to participate in the political activity of the union, had a chance not to do so. In a closed-shop arrangement, union membership was part of the contract of employment, and therefore, they had to join the union, so it was always seen as a way of protecting a very small minority of people who did not want to participate in the political activity of their trade union. We are now in a situation where the Government are trying to change that and say that everyone has to opt in. When people join a trade union, they join the collective and they participate by the rules of the collective. I am unaware of any other membership organisation that an individual can join where they can opt out of a portion of the rules of the organisation they are joining. This is really strange.
Q 331 For my last point, I will simply repeat the point that I made, because it is fundamental. If they are all happy donating, you will not be losing any funds when they are asked whether they wish to opt in to making a donation.
Byron Taylor: Do you mean a donation or a contribution to political funds?
Q 332 We all know what we are talking about.
Byron Taylor: I am not sure I do, but I would like to come back to what happened in 2008 with the Office of Fair Trading. The Conservative party lodged a complaint on this very matter with the OFT through Jonathan Djanogly MP. The OFT ruled:
“In the present case, we do not consider that trade union members are obviously vulnerable to deceit resulting from the way in which unions collect contributions to the levy. The levy has featured prominently in political discourse and news reporting for a very long time. We would expect to take action if we had evidence that large numbers of consumers are unknowingly entering into an unwanted financial commitment from which they are subsequently unable to extricate themselves. We do not at present possess evidence to this effect in relation to the political levy on trade union members.”
This has been a feature of political debate since the late 1940s. There was the Donovan commission in the 1960s. Look at the reviews of party funding that occurred in the 1990s and in 2004, or the Hayden Phillips review in 2006, or the Committee on Standards in Public Life in 2011. The question that comes back is always, “Where is the evidence that some kind of deceit is being practised?”, because it simply is not there.
If we are going to question the purpose of the legislation, may I draw reference to the Conservative Minister of Labour from 1924?
I was minus 50 then.
Byron Taylor: You may have been minus 50, but this legislation was produced in 1913, so it is totally relevant. He said, in a private memorandum, that the
“major part of the outcry against the political levy is not motivated by a burning indignation for the trade unionist, who is forced to subscribe to the furtherance of political principles which he abhors. It is based on a desire to hit the Socialist party through their pocket…we should not delude ourselves as to our intent.”
My question is: what has changed for the Conservative party?
Q 333 I have referred to my entry in the Register of Members’ Financial Interests as a member of the GMB and the Labour party, but, in the interests of complete clarity, I was also an officer of the TULO organisation in the northern region for many years before becoming a Member of Parliament.
Byron, can I take us back to the practical impact of this proposed legislation on trade unions and, indeed, the Labour party? Logistically, can you outline how you think this proposed legislation will impact on trade unions, in terms of getting repeated sign-up and collections of moneys, and particularly on the smaller trade unions, which often have very few members of staff? Can you outline what you think the implications of the Bill will be for those people?
Byron Taylor: The implications of the Bill are significant. It is going to impose a great burden of bureaucracy and red tape on the trade union movement. As I have alluded to, trade unions are primarily industrial organisations and focus the majority of their work on industrial activity and dealing with industrial complaints. As for the idea that trade unions will have to divert massive resources—and it will be massive resources—to try to conduct the operations in the way that the Bill envisages, in writing, that is going to be a substantial drain on trade union resources and activities. That will impact heavily and introduce inefficiencies into wider industry, because trade unions are the bodies that are there to negotiate and to ensure that the industry works properly. To introduce this will divert union resources substantially.
If you look at the smaller affiliates of the Labour party or of any small trade union that is now forced to operate in this fashion, they will find themselves caught up in an endless cycle of bureaucracy, seeking people to opt into the political fund, renewing the opt-in and then conducting the political fund ballot. Looking back at the Better Regulation Task Force in 2002, it ruled that trade unions were already over-regulated in the field of political fund activity.
Q 334 May I just follow that up with one quick, straightforward question? In the legislation that trade unions operate under, in particular employment law legislation, “reasonableness” is applied everywhere. Would you regard this proposed legislation as reasonable?
Byron Taylor: Would I regard it as reasonable? I come back to the point made by Mr Stephens, and my question would be, is it proportionate, is it reasonable? No, it is not. If there is really some concern about how political funds are being operated in the UK—although there is no evidence to show that there is any concern—is it a proportionate response to ask 4.9 million people to re-opt back into the political fund of their trade union? The answer is no, this is not a proportionate or reasonable response. On that basis, it is clearly a partisan attack on Her Majesty’s Opposition, designed to reduce funding and participation. I fail to see how the Bill increases participation at any level, both in the industrial elements, which I do not intend to speak about, and in the political elements—this Bill seems determined to drive down participation. Where are the means of communication that allow trade unions to talk to their members electronically or via telephone? What we are doing is enforcing a 19th-century form of communication on a 21st-century industry, which is bad for business and bad for the trade union movement.
Q 335 Mr Taylor, have you ever made a contribution to the Conservative party by means of buying a good or service from a company whose profits from that transaction were then used to make a donation to the Conservative party?
Byron Taylor: I have, and I had no opt-out from that.
Q 336 Just one quick question, Mr Taylor. When it comes to legislation affecting elections, party political administration and funding, or trade union political funding, do you agree with me that it should have the agreement of either all the political parties represented in the House of Commons or a majority of the political parties represented in the House of Commons?
Byron Taylor: Yes. This comes back to my initial point about the Churchill convention, which has existed in UK law for the best part of 80 years, and I will say it again:
“It is a well-established custom that matters affecting the interests of rival parties should not be settled by the imposition of the will of one side over another, but an agreement reached either between the leaders of the main parties or by conferences under the impartial guidance of Mr Speaker.”—[Official Report, 16 February 1948; Vol. 447, c. 859.]
Even Margaret Thatcher realised the danger of interfering in the affairs of other parties. What is being created here is a circumstance in which the party of government is seeking to undermine the party of opposition. That is a very dangerous place to go in our democracy. It is deeply concerning that we find ourselves here, discussing a matter of this kind, when there is no clear agreement between the main parties.
I think that is it. Thank you very much, Mr Taylor, for your evidence.
Ordered, That further consideration be now adjourned. —(Stephen Barclay.)
Adjourned till this day at Two o’clock.
Trade Union Bill (Fourth sitting)
The Committee consisted of the following Members:
Chairs: Sir Edward Leigh, † Sir Alan Meale
† Argar, Edward (Charnwood) (Con)
† Barclay, Stephen (North East Cambridgeshire) (Con)
Blenkinsop, Tom (Middlesbrough South and East Cleveland) (Lab)
† Boles, Nick (Minister for Skills)
† Cameron, Dr Lisa (East Kilbride, Strathaven and Lesmahagow) (SNP)
† Cartlidge, James (South Suffolk) (Con)
† Doughty, Stephen (Cardiff South and Penarth) (Lab/Co-op)
† Elliott, Julie (Sunderland Central) (Lab)
† Ghani, Nusrat (Wealden) (Con)
† Howell, John (Henley) (Con)
† Kennedy, Seema (South Ribble) (Con)
† Mearns, Ian (Gateshead) (Lab)
† Morden, Jessica (Newport East) (Lab)
† Morris, Anne Marie (Newton Abbot) (Con)
† Prentis, Victoria (Banbury) (Con)
† Stephens, Chris (Glasgow South West) (SNP)
† Stevens, Jo (Cardiff Central) (Lab)
† Sunak, Rishi (Richmond (Yorks)) (Con)
Glenn McKee, Committee Clerk
† attended the Committee
Professor Keith Ewing, Professor of Public Law, King’s College London
Janet Davies, Chief Executive and General Secretary, Royal College of Nursing
Dr Patrick Roach, Deputy General Secretary, NASUWT, The Teachers’ Union
Mark Serwotka, General Secretary, Public and Commercial Services Union (PCS)
Jon Skewes, Director for Policy, Employment Relations and Communications, Royal College of Midwives
Matt Wrack, General Secretary, Fire Brigades Union (FBU)
Paul Kenny, General Secretary, GMB
Len McCluskey, General Secretary, Unite
Frances O’Grady, General Secretary, Trades Union Congress
Dave Prentis, General Secretary, Unison
Nick Boles MP, Minister for Skills, Department for Business, Innovation and Skills
Matthew Hancock MP, Minister for the Cabinet Office and Paymaster General, Cabinet Office
Public Bill Committee
Thursday 15 October 2015
[Sir Alan Meale in the Chair]
Trade Union Bill
Examination of Witness
Professor Keith Ewing gave evidence.
We will now hear oral evidence from Professor Keith Ewing, professor of public law at King’s College London. This session will run until 2.30 pm. Professor Ewing, could I just outline how we are going to play this? I will ask you to introduce yourself and outline why you are here. It will then become a hearing, with Members from alternate sides asking you questions. Could you be as succinct as possible? I would urge my colleagues to do the same, but it does not always work that way. Remember that the time you are using is the only time you have, so use it well, if you can. Would you care to introduce yourself?
Professor Ewing: My name is Keith Ewing. I am a professor of public law at King’s College London.
Q 337337 Professor Ewing, could you set out in a little more detail your experience working on issues around trade union law at a domestic and international level?
Professor Ewing: In terms of my experience?
Yes. Your experience, background and qualifications.
Professor Ewing: I have been professor of public law at King’s College since 1989. Before that, I taught at the University of Edinburgh and at Cambridge. I have taught overseas in many countries. I have worked as an adviser to a number of trade unions, both in this country and overseas. I have worked as an adviser to the International Trade Union Confederation. I do a lot of work with the International Labour Organisation in terms of evidence that I prepare and cases that I help to submit. I work very, very closely, I suppose, with the trade union movement.
Q 338 Thank you. That is very helpful. Given that level of experience, and looking at the Bill as a whole, where do you feel it falls down or potentially conflicts with both international and domestic conventions and law?
Professor Ewing: I have two concerns with the Bill. The first is the extent to which it is compatible with our treaty obligations. The second, because of my other interest, is the extent to which it is compatible with the constitutional principles, conventions and practices that operate in this country.
As far as the first of those is concerned—international labour treaty obligations—there are a large number of treaty obligations binding this country that relate directly to the provisions of the Bill. I will start with the International Labour Organisation. There are three treaties that are particularly relevant and are binding on this country: conventions 87, 98 and 151. I can go into some detail, if you would like.
Q 339 Can you expand a little on where you feel the Bill conflicts with those?
Professor Ewing: Convention 87 is relevant because it deals with the right to strike. The right to strike is not expressly referred to in convention 87, but it has been read into convention 87 by the supervisory bodies over a number of years. One issue that I think arises in relation to the right to strike is the additional requirement of two weeks’ strike notice. There are lights flashing in my head about that. The second issue relates to the thresholds for industrial action, and in particular the 40% threshold for support for industrial action in some sectors. That, too, is beginning to make lights flash in my head about the compatibility with ILO convention 87.
There are two other conventions: 98 and 151, which deal with the question of collective bargaining. Convention 98 applies to collective bargaining generally, and 151 deals specifically with collective bargaining in the public sector. One reason I think there might be problems here relates to the Minister’s announcement after the Bill was published about abolishing check-off in the public sector. I think that will cut across collective agreements and raise questions in relation to 98 and 151.
Another point relates to trade union facility time and the provisions in the Bill, which will give a Minister the right to rewrite collective agreements. That cuts across the idea of collective agreements being voluntary and runs into problems with 98 and 151.
Before I finish, there is the good question of why we should take the conventions seriously. There are two reasons. First, although people were quite indifferent to ILO obligations in the past, the European Court of Human Rights has, since 2008 in particular, begun to pay particular attention to the importance of the conventions in determining the scope and boundaries of the European convention on human rights itself. There was a very important case to that effect in 2008.
Secondly, we are reaffirming our vows to the conventions in the free trade treaties that we are now signing. We signed such an agreement with Korea in 2010, and we are about to sign a free trade agreement with Canada. In these treaties, we commit ourselves not only through the European Union, but as a member state to complying with the international labour obligations to which we have subscribed. The conventions are very important.
Q 340 May I ask a specific question about the certification officer? The Bill’s proposals amount to an extensive expansion of the role. We have heard from other witnesses that there is potentially a serious blurring here between the investigating, adjudicating and enforcing of complaints. Does that breach international conventions or domestic principles about natural justice and not blurring such roles in a quasi-judicial position?
Professor Ewing: The certification officer provisions are extremely serious. I say that partly because we have to bear in mind who appoints the certification officer. Under the 1992 Act, the appointment of the certification officer is in the gift of the Minister, so the Secretary of State effectively appoints the certification officer. You referred to powers of investigation, which are deeply troubling because, in a sense, they give the certification officer this extraordinary power where he thinks there is good reason to do so. That is the test. It is where the certification officer thinks there is good reason to do so. They can then embark upon this extraordinary power of investigation to demand documents, to require individuals to co-operate and to require the attendance of individuals at a particular location. The certification officer then has the power to demand that—[Interruption.]
Professor Ewing, I apologise for that interruption. Sometimes technology is to blame. One of the first things people do when they get downstairs and outside is light up a cigarette and that can be a bit of a problem. Mr Doughty, would you like to continue?
I have had a word with Professor Ewing and he says he might be able to finish in the timescale set, but if we cannot, we will continue.
Q 341 Thank you, Sir Alan. Professor Ewing, we were talking about the certification officer. Recalling what you were saying, essentially you are worried that a Minister—a member of the Executive—will appoint an individual who is effectively police, judge, jury and executioner with some fairly wide-ranging powers.
Professor Ewing: Let me say, I hope it was not anything I said that led to the disturbance.
My concern with the Bill is, first, these very extensive powers of investigation, which could eventually lead to someone to being imprisoned for non-compliance. What would worry me is what would trigger that process. What triggers the process is the suggestion that the certification officer can take these steps where he thinks there is good reason to do so. Given the nature of the power that has been given to the certification officer, you would be looking for much a higher threshold before powers of that kind could be triggered.
That is the power of investigation, but there is also the power of adjudication, which has been greatly expanded under, I think, what is now schedule 2. The issue is that the certification officer can initiate a complaint, so in a sense he is the complainant. The certification officer as a complainant will bring his or her own witnesses, cross-examine his or her own witnesses and then make a decision in his or her own cause. They will then have a new power to impose a financial penalty.
That seems to me to be a violation of fundamental principles of natural justice, which apply in this case and I refer to in my written submission: fundamental principles of justice rehearsed by Lord Chief Justices as far back as the 1920s. It would certainly contravene the well-established principle of English and Scots law that no one should be a judge in his or her own cause. I think that provision needs to be looked at very carefully again.
Q 342 Thank you, Professor, for being here. I want to ask you about thresholds and that part of the Bill. I am obviously not a legal expert on rights, but I think what the threshold provision is trying to do is balance the right to strike—which certainly no one is saying should not exist—with the right of people to go about their ordinary business, send their kids to school, use the trains and tubes, gain access to hospitals and so on. That balancing seems moderate and reasonable. Do you think any weight should be given to the rights of people to go about their ordinary business? Do you agree with the general secretary of the Unite union who, you may have read, has said in principle that he can agree with the idea of thresholds and time-limiting ballots?
Professor Ewing: I do not want to intrude into these very sensitive debates. Whether or not it is moderate or reasonable, I would ask whether it is lawful. That would take me back to the ILO conventions that I referred to earlier—in particular, ILO convention 87—and there to the jurisprudence of the supervisory bodies that emphasise two points.
One is that we should be counting the votes of only those people who vote in strike ballots. If you do not vote, in a sense, you do not count for these purposes. Secondly, when we get to questions of thresholds, the ILO supervisory bodies have said, in a long line and expanding group of cases, that any threshold has to be reasonable. On the question of what is reasonable, what they have said so far is that a threshold of 50% of those eligible to vote is not reasonable. The Bill pitches that at a bit less—at 40%—and the question is, is 40% reasonable?
In determining whether 40% is reasonable or not, I think you have got to take into account the voting methods. The problem with the 40% threshold in the context of the legal framework within which it will be dropped is that it will be dropped into a very rigid system of voting. And if you are going to make an argument for thresholds, I think you have got to be a bit more relaxed about the way in which people go about voting. To have mandatory postal balloting is, I think, probably excessive, too rigid and does not apply elsewhere.
Q 343 Thank you for that. Just so that we are clear, I understand your concerns about the details on how voting works, but in principle you think that the idea of a threshold is fine.
Professor Ewing: No, no, you are putting words into my mouth. My starting point would be the principle of freedom of association. My starting point as a result is that it must be ultimately for trade unions to decide their own internal methods of governance and their own relationships with their members.
If we are going to intrude into that principle of freedom of association that we have subscribed to as a nation, there has to be some compelling reason to do so. That compelling reason has to be compatible with our international legal obligations, and I think there are serious doubts about whether the threshold we are about to introduce will be compatible with the requirements of ILO convention 87.
Q 344 In your opinion, but the ILO convention does accept the principle of a threshold.
Professor Ewing: Well, the ILO supervisory bodies have said that if you introduce a threshold, it has to be reasonable. What I am saying to you is that a 40% threshold in my view is too high in the context of the very rigid voting system we have in this country.
Q 345 I understand, but there is no opposition to the threshold in principle under the convention.
Professor Ewing: Well, the ILO bodies are very unclear. In a sense, they say, “If you have a threshold, it’s got to be reasonable,” but they also say, “You should only be counting people who vote.”
Q 346 Professor Ewing, in relation to the devolved Administrations, what impact will the Bill have on both their policies and criminal or civil law?
Professor Ewing: This is going to be a really difficult question in the months ahead. The issue here particularly for Scotland is the proposals on the check-off and the powers in relation to facility time—the duty on public bodies to publish facility time arrangements. I think there are two problems here. One is a question of whether these provisions fall within the reserved powers of the Westminster Parliament.
I am sure that a lot of people are taking advice—legal or otherwise—about this at the moment, but I am not sure if the check-off provisions would satisfy the requirement that they fall within the reserved powers of the Westminster legislature and there are lots of reasons why that might be the case. I would hope that the Scottish Parliament will have an opportunity to think about and comment on this question. But, at the end of the day, this is a sovereign legislature and you can push through whatever legislation you think appropriate, whether or not it is incompatible with the devolution settlement. I have doubts about whether all of this package will be compatible with the devolution settlement, but I have no doubt that you have the right to push it through, despite the incompatibility.
The problem that I think will come will not necessarily be a legal one. The problem will be a very severe political problem in the future. The problem will be if a Scottish public body decides, “We are not going to comply with this ban on the check-off,” or “We are not going to publish the facility time arrangements that we give to trade union representatives.” What will happen at that point? We are looking at the question of who will enforce those obligations against Scottish public bodies. Are we really saying that the Secretary of State for Scotland will bring a case against a major Scottish public authority to enforce those obligations? The Government are walking, almost blindfolded, into a major constitutional crisis around the Bill. That constitutional crisis could be as explosive for this Government as the poll tax was for the Thatcher Government in the late 1980s and early 1990s. This is a big, big problem, and I am not sure that people have really thought through the consequences.
Q 347 One last question on the thresholds. Do you think that there are also gender equality issues, where in workplaces a majority of women workers might not be able to go on strike because a shift change would impact on them more than it would on male workers?
Professor Ewing: That is a good point, which I had not thought of, and it is something that I would like to think about before coming back to you. I am happy to address the Committee on that point, but I would like to think about it first.
Q 348 You talked about the ILO conventions. A great deal of your report is concerned with ECHR conventions, and I accept you cannot mention everything in your brief summary today, but would you accept that as recently as last year, the European Court acknowledged that it was legitimate for the Government to legislate to impose some constraints on article 11? Would you accept that there is a wide margin of appreciation for the Government in the way that this can be handled?
Professor Ewing: Are we talking about the RMT case?
Professor Ewing: Yes, the British Government won in that case, but what I would say to you is that that case was really quite eccentric. There have been five or six decisions on article 11, specifically in relation to the right to strike, since April 2009, and the only case in which the Court has held in favour of the Government is the RMT case involving the United Kingdom. If I were the Government here, I would not be feeling very complacent or comfortable about that decision, because we have got cases from Croatia, Ukraine, Turkey and Russia in which the Court has said that the right to strike is protected and restrictions have to be justified. That case on its facts accepted that the restrictions could be justified, but you cannot conclude from that that all restrictions will be justified.
Q 349 No, no, and I do not think that anybody on the Government side would disagree that the right to strike should be protected and that restrictions should be justified. That is absolutely the Government’s position. Let me turn it around. Are there any cases that support your view that it is not legitimate for the Government to make proportionate restrictions under article 11?
Professor Ewing: It is quite difficult to answer that question directly, because every case is different. In this case, whatever the challenge is under the convention to this legislation, first, it is not clear yet what the challenge will be, and it will be a strategic question for trade unions to consider which will be the best way in to attack the legislation, I imagine; and, secondly, when the challenge takes place it will also be informed by the influence of other treaty obligations. The European convention is not an island that sits on its own. We have regard to the decisions of the Social Rights Committee of the Council of Europe, which has also expressed criticism about our existing law. We will have regard to ILO supervisory bodies and their views on it. That will help to construct the case, so at this stage, it is hard to know what the case will be. We have got pointers as to what it might be, but the case will have to be built. I guess a very careful case will be built in order to learn from the lessons of the RMT case.
Q 350 Okay. Can we move on to certification officers? I am thinking about the type of person who is a certification officer. It tends to be an Employment Appeal Tribunal judge or people of that type. Do you really feel it is unreasonable for others with a legitimate cause for complaint, because of the results of industrial action, to encourage the beginning of an investigatory process?
Professor Ewing: The certification officer is not a judge. The existing officer is a solicitor or partner in a law firm. Previous officers, I think, were former civil servants who did not have legal qualifications. You are telling me something I did not know, in the sense that the certification officer’s powers are going to be triggered by complaints made to him.
Q 352 More someone with a legitimate cause for complaint—someone who is affected by strike action.
Professor Ewing: Looking at the powers in schedule 2, we are talking about provisions relating to trade union elections, trade union expenditure and trade union amalgamations. This is about the internal affairs of the union, principally. If employers or whoever have a problem with strike ballots or whatever, they already have a remedy by way of complaint to the ordinary courts, which would be much quicker.
Q 355 His job is to investigate non-compliance.
Professor Ewing: Yes, but only with specific obligations. If you look at page 16, the obligations to which the investigatory powers apply are listed in paragraph 1(a) to (h). They do not seem to apply to industrial action. The powers in schedule 2 are to make complaints against a union that he himself will adjudicate. These are powers that relate to the internal affairs and government of the union, so I do not know where the power you refer to arises. This was a power we used to have from the last regime, but I thought it had gone.
Professor Ewing, thank you very much. You have been very helpful indeed. We will now move on to the next panel.
Examination of Witnesses
Janet Davies, Jon Skewes, Matt Wrack, Mark Serwotka and Dr Patrick Roach gave evidence.
Q 356 We will now hear oral evidence from the Royal College of Nursing, the Royal College of Midwives, the Public and Commercial Services Union, the Fire Brigades Union and, of course, the NASUWT. Ladies and gentlemen, we have until 3.5 pm at the absolute latest because of the difficulties we experienced earlier. We will allow you to introduce yourselves briefly, and the Committee will then put questions to you either collectively or individually. The Government are on the right-hand side, and the Opposition are on the left. The three main political parties in Parliament are present, and all evidence gathered will be available for other Members to browse, if they so wish.
Jon Skewes: I am Jon Skewes, director of policy, employment relations and communications at the Royal College of Midwives. The RCM is a professional body and trade union, representing about 45,000 midwives and support workers in the United Kingdom. We have no affiliation to any political party and we work with all in Government and outside Government. At the end of last year and the start of this year, we took our first industrial action in 134 years in England. That was closely followed by similar action in Northern Ireland; it was essentially on the same dispute. In England, it has been amicably settled with the Secretary of State following discussions. We are particularly concerned about the issues of agency staff, picketing restrictions and good industrial relations in the NHS.
Janet Davies: I am Janet Davies, the chief executive and general secretary of the Royal College of Nursing. We are also a professional organisation and trade union, with approximately 420,000 members across both the public and the private sectors. The majority of our members are registered nurses and health visitors, but we also have healthcare assistants as members. We have never taken strike action in our nearly 100-year history, but we are exceptionally concerned about the Bill, particularly in terms of facility time—clauses 12 and 13—and placing added bureaucracy and added cost on a health service that is already struggling with finances and bureaucracy.
Dr Roach: My name is Patrick Roach. I am the deputy general secretary of the NASUWT, the teachers’ union. We are the largest teachers’ union that organises right across the United Kingdom. We represent about 300,000 teachers. We have fundamental concerns about the provisions in the Bill, including the definition of “important public services”, the use of agency workers and the powers of the certification officer, which we are happy to discuss.
Matt Wrack: I am Matt Wrack, the general secretary of the Fire Brigades Union. We represent some 85% of the uniformed fire service workforce and over 90% of whole-time firefighters across the UK. We have had, which you heard some evidence on this morning, a number of industrial disputes. However, much of our time is spent, through our well established industrial relations procedures in the National Joint Council, resolving disputes at local level before they arise. We have concerns about the impact of the Bill on the rights of firefighters to organise, to protect their safety, which is of particular importance to us, their terms and conditions and the impact that will have on industrial relations in the fire service.
Mark Serwotka: I am Mark Serwotka, the general secretary of the Public and Commercial Services Union. We have a quarter of a million members—overwhelmingly, civil servants and public sector workers working on public contracts and in non-departmental public bodies—and a significant membership in the private sector as a result of outsourcing where people have remained members of PCS.
We have lots of concerns about the Bill, but I know that you are hearing lots of evidence, so I will just draw particularly to your attention at this point the effect of the Bill on people’s right to take lawful industrial action. We are particularly representing public sector workers, who in our case have had 11 years of pay restraint. Secondly, we think much of what is in the Bill was trialled in the civil service by the last Government. Therefore, we have direct experience of the withdrawal of check-off, the withdrawal of facility time and the attempt to openly undermine trade unions by public servants working at the Government’s behest. Thirdly, as a non-affiliated public sector union that spends over £1 million a year on campaigning, much of which is political but not party-political campaigning, we have very clear concerns about the effect of the changes to the political fund rules.
Thank you. Before we proceed to hon. Members asking questions, can I just tell you that we have only until five minutes past 3? Our time is very brief, so please be aware of all the time you are using in the replies to the questions put to you. Try to make them succinct, because you are using each other’s time up. I am just giving you a bit of advice. If you could be helpful to both Members and yourselves, that would be much appreciated by Members.
Q 357 I have a few short questions that I would like to put to different groups if that is okay. First, to Jon and Janet, given what we have heard about the relatively small incidence of industrial action in the history of the health sector, particularly in relation to your two bodies, fundamentally do you think that this Bill is needed?
Jon Skewes: Not at all. I do not think we have plans to repeat that industrial action over and over again by any means. I think we think it is disproportionate, absolutely; and also it could be quite dangerous in terms of safety in the NHS.
Janet Davies: We do not think it is necessary at all. In fact, we think it will damage relationships, which are very good in the health service. We know that productivity is increased with the facilities time and with having trade union representatives in the workplace. We know it affects patient safety. We think it will be expensive. We think it will introduce extra bureaucracy and could be quite damaging for the good relationships we have got, which could have an effect counter to what is required.
Q 358 Janet, we had a Government witness yesterday, from an organisation called 2020 Health who, you may have heard, had a whole half hour to explain that they did not appear to know anything about the Bill. Nor did they know what facilities time was. Unfortunately, you have not got very much time, but could you briefly give us an example of how facilities time benefits employees and patients?
Janet Davies: Yes. We know that facilities time has benefits; we have looked at the evidence and the University of Warwick has done some studies for us and we know that productivity is increased. Certainly, in terms of staff leaving and recruiting, it is much better in a place where there is trade union facilities time, and where there are trade union representatives. Actually, we have worked out that that difference in turnover would save an average teaching hospital £1 million a year. It is a really positive effect that the time gives.
What happens is that our trade union representatives work in partnership with employers, often introducing change, introducing new clinical practice, and investigating things and stopping problems before they start. The proposal could be counterproductive for the good relationships that we have at the moment. Importantly for us as a nursing organisation it could have a detrimental effect on patient care, as it would seriously affect the positive practice environment that we try to create.
Q 359 Thank you for that. Matt, we heard some evidence from the London Fire Brigade this morning and you have referred to it. I wondered whether you wanted to respond to any of the comments and whether you could also tell us about the different approaches to industrial relations in the fire sector across the UK. Some quite important contrasts were drawn between what has happened in Wales and what happened in some disputes in London.
Matt Wrack: Yes, I do want to correct the impression that was given this morning. I have known Ron Dobson a long time and was surprised to hear some of the things he said. He mentioned that he was unaware of any arrests. There were two arrests in that dispute. They were not of FBU members. One was of a non-union middle manager and one was of an agency driver—in both cases for driving into members of the Fire Brigades Union. Two of our members were injured, one of whom is sitting in this room, behind us. Ron Dobson was also unaware of the outcome, which is again surprising because his own authority paid compensation to the two FBU members who were injured as a result of those two incidents.
Q 360 So you were surprised that he did not appear to be aware of that fact.
Matt Wrack: I am surprised that the senior executive of that organisation did not know that his organisation had paid compensation to two members of mine who had been injured by agents of his during an industrial dispute.
He also used the word “barricades”, which gives the impression of watching “Les Mis”, or something. There were no barricades on London fire stations in 2010. It is utterly misleading to claim that. He also was asked a question, by Jo Stevens, I believe, about the unlawful docking of pay. He said that three cases had been settled. Most people will know that actually in many such cases you run test cases. We ran three test cases of 368 individuals who had had pay stopped. We won those test cases. The London Fire Brigade has decided not to appeal, and the London fire authority has set aside several tens of thousands of pounds to pay compensation for the 368 Fire Brigades Union members who had pay unlawfully stopped. Those are the facts of the situation.
Q 361 It is very concerning to hear that, and the commissioner made it clear that he would write to the Committee with some of the information that he did not appear to have at his fingertips. I hope that he will correct some of what he said in the light of what you have said to us just now.
I want to ask about devolution and perhaps this could be touched on broadly across the panel. Clearly, you all operate in public services that are, to a large extent, wholly or partially devolved across the UK. We have just heard from Professor Ewing that the Bill could lead to a fairly serious constitutional crisis in terms of cutting across the devolution settlement. How would you respond to that? Do you think that there are serious risks for relationships across Wales, Scotland and local government across England, of which the Bill shows no awareness, and does not address? I am happy to take a couple of comments, though I am sure we do not have time to hear from everyone.
Mark Serwotka: I share Professor Ewing’s concerns, and I will illustrate that with these examples. We have very good industrial relations currently, for example, in Scotland and Wales with the devolved Administrations, who have sat down and agreed with us the need for positive industrial relations, and made it clear that they do not wish to see the withdrawal of check-off or facility time. What we are in danger of seeing is those bodies that have entered into agreements with their workforce for the smooth running of public services being compelled to act against what they think is in the best interests of themselves as an employer and public service users.
That is particularly concerning because if we look at the civil service when this was done, the last Government effectively compelled all Government Departments to do the same thing, under the guise of this activity being a waste of taxpayers’ money. The Committee needs to know that in the civil service our union offered to pay every penny of every cost that was required to take check-off, so there would be no cost to the taxpayer. Not only was that rejected, but we saw the absurd situation in the Department for Communities and Local Government, where Eric Pickles, as the Secretary of State, withdrew check-off. We took him to the High Court; he lost the case and we won it, on a contractual right to check-off. He cost the taxpayer £100,000 to save £320 a year in the entire Department’s administration.
Q 362 Given what you have just said and given the evidence from the Welsh Government and others, do you think that there is a serious risk here that we will end with significant legal disputes about contractual provisions that have already been entered into, particularly with regard to check-off?
Mark Serwotka: Absolutely inevitably and it will be very, very costly, as the example I have just given proves. We can furnish you with the evidence of that case.
We have sittings such as this one to try to get the message across. I have got a little bit of leeway to gain back time; I am aware of that. But I would like to move on, because the next questioner is Edward Argar.
Q 363 Mr Wrack, thank you very much for your clarification there, particularly of that court case, and thanks to my hon. Friend the Member for North East Cambridgeshire (Stephen Barclay) for his comment. Going back to the evidence from the commissioner this morning, in the course of that dispute in 2010, was access in any way to any fire station being used by contingency crews impeded by any FBU members at any point?
Matt Wrack: Again, I found it somewhat surprising that Mr Dobson presented it in that way. We had pickets on fire stations, as we are perfectly entitled to do, and there were no such barricades. There was a police presence on some occasions. We co-operated, and we had interesting evidence from the police earlier today. We co-operated with the police on every occasion that there were discussions. It is utterly misleading, as again was suggested, to say that there were any delays to emergency calls as a result of the actions of FBU pickets during that dispute.
Q 364 That is not quite what I asked; I am grateful for that, but it is not quite what I asked. Did those pickets in any way impede any ingress or egress to and from those stations?
Matt Wrack: They were picketing their place of work. What happened in general is that the replacement agency staff drove up to the fire station and drove off.
Q 365 So you say that they were picketing their place of work. What happened in general? Were there any occasions when access was physically blocked?
Matt Wrack: I think I have explained that. Firefighters were picketing their place of work. Replacement agency staff drove up and drove off. That is what happened. There was no pushing and shoving; if you have got images of 1970s TV programmes, that is not what happened in any of these situations.
Q 366 Would you agree or disagree with the view—I suspect that I know the answer, but I will ask the question—that what you have just said, if we accept it, that some people drove up and drove off again, shows that those people felt intimidated by the presence of those pickets and the behaviour, which caused them to drive away again?
Matt Wrack: Let us be clear about the right to picket. The right to picket is being interpreted by some people as an attempt to intimidate. The right to picket is about trying to persuade other workers to comply with the call to take action. In this case—again, Ron Dobson seemed to forget the cause of the dispute. The cause of the dispute was that he had issued a sacking notice to 5,000 London firefighters; the entire workforce were being sacked. So you can imagine that some of them were quite irate about that. However, where we had the opportunity to speak to those agency replacement staff, we did so, and in a number of cases the police assisted us in doing that. We put our case to those agency staff; unfortunately, they carried on with the work they were undertaking.
Q 367 I have a couple of very quick follow-ups. You will be familiar with the Carr report. Paragraph 4.66 refers to evidence provided by Assistant Commissioner Dave Brown on behalf of the London fire brigade, in which he made a number of allegations. I would be grateful for your reaction to them, either collectively or individually. He said that,
“tactics included…Stations left open or barricaded and fire alarms activated…Security codes at fire stations changed…Station gates padlocked and crews cars blocking forecourts preventing access for stand-in crews.”
Those are just a few of the number of things he suggested. Do you have any reaction to the assertions in that report, Mr Wrack?
Matt Wrack: Again, I have known Dave Brown a long time. I worked on the same watch as him at one point. His report has not been backed up by any evidence. The interesting point in all this is the question: what did the police do? If there were concerns about this and implications of serious breaches of public order, the police would have intervened. The police did not intervene. We had good relations and good co-ordination with the police throughout all the protests that took place during that dispute. None of our members were arrested. The only two arrests were of two people who decided to work through that dispute and ran over two people who were protesting. I reject those suggestions from Mr Brown, but we are happy to look at any evidence that he actually has with any detail on that.
May I point out to people giving evidence and answering questions and to Members that we are approaching having used two thirds of our time? We should make it more succinct if you want to get the answers in. I call Chris Stephens.
Q 368 Thank you, Sir Alan. First, I ask the panel for their thoughts on whether they regard the threshold proposal to have any impact on women who wish to pursue industrial action. Secondly, can they give examples in relation to their political funds? I believe that they are all at the moment not affiliated to a political party. How will the Bill affect those political funds, and what organisations will it affect?
Mark Serwotka: Very briefly, the changes to political funds will have an enormous effect. People should not confuse it with affiliation to the Labour party in our case, because we are non-party politically affiliated. It is timely that we have been asked that question, because I am here on the very day that the Government announced that they were essentially backing down on the privatisation of criminal fines enforcement in the Ministry of Justice. My union has waged a five-year political campaign pointing out that that privatisation is wrong, and the Government have accepted that argument today.
A year and a half ago, we made a political argument not to privatise the Land Registry, which was also successful. Those campaigns are funded by political funds, which would be devastated by the opt-in, rather than opt-out method. It would massively curtail things. Directly, there is evidence that had we not run those campaigns, the Government would probably have made the wrong decision on two occasions.
On the right to strike—I will keep this short so other people can speak—all I would say is that in my union, it is predominantly the women membership who are suffering from 11 years of low pay and freezes to tax credits. Some 40% of PCS members claim tax credits. It is quite clear that there is a disproportionate effect on them if their ability to strike is undermined.
All I would ask the Committee is to consider this: do the Government really care about thresholds? Over the past 10 years, during the last Labour Government, the coalition Government and now, I am on record as saying that we would love to sit down and talk about changes in ballot methods to allow secure, online workplace balloting. In my union, we have done pilots. Where the law allows ballots in the workplace, the turnout is treble what it is when you have a statutory ballot by post. There is irrefutable proof that in comparable elections, three times the number of people vote in work. We have the technology to do it securely. That is what the Government should be talking about, because that would have a massive upwards effect on turnout.
Matt Wrack: Very quickly on the political fund, we were affiliated to the Labour party. We are not currently affiliated to the Labour party, but we have a political fund. Our members have the right to opt out of that political fund. In our union, they also have the right to make clear that they would not want any political fund going to a political affiliation, even if we were affiliated. They have a number of choices on the political fund. As Mark said, our political fund is primarily used for key political campaigns around the terms, conditions and safety of firefighters. In our view, were the Bill to proceed, it would seriously undermine our ability to function in that regard.
On the point about balloting, we note that both major political parties have recently used modern forms of balloting—for example, electronic balloting has been used by the Tories for the appointment of the candidate for London Mayor—so it seems bizarre to us that trade unions are being told that we cannot use such balloting methods going forward.
May I pause you for a second? We have 10 minutes remaining and four Members want to ask questions, so we need to speed up the replies and the questions.
Q 369 Dr Roach, when your members go on strike, the people affected will all have to arrange alternative childcare because of the nature of your members’ profession. In relation to clause 7, which is on the notice period, do you not recognise that giving parents 14 days, rather than seven, would give them more scope to organise alternative arrangements?
Dr Roach: We do not agree with the proposed measure to increase the notification period for industrial action. It has to be borne in mind that, as a trade union, we are engaged in industrial action that does not always include strike action. In fact, by and large, our industrial action is pupil and parent-friendly. It includes action short of strike action, which is to say working to an idea about what the teacher’s contract should be in order to raise educational standards, so that children’s education is not disrupted.
Q 370 But when there is strike action and there is disruption to children’s education and their parents’ ability to go to work, would you not recognise that giving them 14 days’ notice would give them more ample opportunity to re-arrange their lives, so that they can contribute to the economy by going to work?
Dr Roach: I am not going to challenge the logic of what you are saying. What I would argue is—
Q 371 So you accept it then.
Dr Roach: I am not going to challenge the logic of the argument you have put forward. The best way to minimise disruption to parents up and down the country is through sensible dialogue, genuine negotiation and a will to resolve industrial disputes before disruption becomes necessary. I would take you back to a point I made at the outset: by and large, our industrial action features action short of strike action, which does not disrupt the rights and ability of parents one jot. At the moment, we have in the Bill a blanket or universal provision affecting all forms of industrial action. That seems to us to be unnecessary and disproportionate.
Q 372 I have a question for Mr Skewes. Earlier this week, we heard from a Government witness from 2020 Health who seemed unaware that trade unions already have life and limb cover in hospitals when industrial action is taken. Do you believe that the Government’s wider proposals on the use of agency workers during strike action are required?
Jon Skewes: No, not at all. The last thing the English NHS in particular needs is more agency workers, the cost of which has gone up by a factor of 11 over the past two years. If there were proposals to bring in agency workers instead of, for example, midwives, first of all, someone attending a woman giving birth has to be, by law, a midwife or a doctor. We think it would undermine quality and safety. Frankly, in our last industrial action, we ensured that every women in this country had the service that would normally be available to them. Most of our members were not on strike—I would say that 90% of our members were providing that cover and 10% were on what were essentially protests. I think that that was hugely supported by the British public.
There are a number of other things. First, there are not that many of those people. If we look at the figures—I think this is in our written evidence—most agency workers are already working in the NHS at the moment. They are probably also our members, so the agency workers themselves would be on strike.
Secondly, I think it would have a really bad effect on team morale and the way in which safety is underpinned. Those people do not have the knowledge of trust safety protocols, quality protocols and so on. We resent the fact that, given the way we absolutely went out of our way with trusts and NHS England to underpin safety during that dispute, we would be faced with a dilemma in the future. Do we allow them to just replace our members with agency workers, which would be much more costly but we know would not be as safe? I do not think we would do that. It is a dilemma that we resent.
Two Members want to ask questions. I am going to take them both together. If for any reason you wish to come back in the short period we have got left, I will allow that.
Q 373 I have a quick question for Mr Serwotka. I understood your points about online balloting. Just so I understand, do you support the principle of a threshold for strike action, so that when there is disruption to the public services that people depend on, they know it has been backed by a reasonable number of members involved?
Mark Serwotka: No, I do not. Unless the Government were to say that thresholds should apply to all referendums and all other comparable ballots, it singles out the trade unions. It means that people who do not vote are counted as no votes, which to my mind is completely unacceptable.
This is a question for Dr Roach. The NASUWT organises across England, Wales, Scotland and Northern Ireland. Could you let Members know whether there is any significant difference in levels of industrial action in the four areas, where the governance is different?
Dr Roach: Yes, we do indeed organise right across the United Kingdom. There are very real differences in the industrial relations contexts in each of those jurisdictions. Our ability to engage in genuine dialogue with the Administrations in Northern Ireland, Scotland and Wales is, frankly, far superior to our ability to engage in genuine dialogue, with the view to resolving teachers’ very real concerns about their pay, pensions, working conditions and job security, in England. There are acute differences, but I would come back to the issue of the importance of the trade unions’ ability to represent the interests of their members. They ensure that their members’ working conditions are adequately protected through the use not only of strike action but of other means, including the intelligent use of action short of strike action. That has been an important mainstay of our strategy for protecting the interests of our members right across the UK.
Thank you very much. That brings us to the end of the time allotted to your panel. Thank you very much for attending. If we have any queries arising from the evidence you have given, we will be in touch to ask you to reply.
Examination of Witnesses
Len McCluskey, Sir Paul Kenny, Frances O’Grady and Dave Prentis gave evidence.
Q 374 First, may I welcome you all to the Committee? It is an illustrious bunch we have in front of us who represent an awfully large body of members. It is very rare that Parliament has the opportunity to get such a group together and ask them questions. You will very quickly introduce yourselves to the Committee. We will then move on to queries and questions from Members, which will alternate between the Government and Opposition sides. We will go to Members who wish to raise questions relating to the Bill.
Dave Prentis: Good afternoon, everybody. My name is Dave Prentis. I am general secretary of Unison—the public service union of 1.3 million paying members who provide our public services. We recruit everybody in public services, except doctors and teachers. We do compete for members with other unions—probably 10 in local government and maybe 15 in the health service.
My view is very strongly that the Bill as worded at the moment is a major attack on workers’ rights in this country, and it will make industrial relations, especially in public services, far more difficult. We have partnership working throughout all of our public services. We have agreements that bring in many of the issues that are going to be made illegal and we think that it will lead to far worse industrial relations.
Frances O'Grady: My name is Frances O’Grady. I am the general secretary of the TUC, representing 52 unions who organise around 6 million workers UK-wide. The TUC opposes this Bill and the associated proposals. We believe it threatens fundamentally the right to strike and other critical civil liberties in this country. We note that the Regulatory Policy Committee said that the Bill was not fit for purpose, and we believe that it would fundamentally shift the balance of power from ordinary working people towards employers and make it harder for unions to defend jobs, pay and fairness at work.
Can I add that I am conscious that a good deal of the debate has focused on thresholds, even though that contravenes the ILO’s clear standards on this issue? It is important to note that, even if all those tests and thresholds were met, the Government also propose that employers should be able to replace striking workers with inexperienced and possibly untrained agency workers, therefore completely pulling the rug from beneath the right to strike. We know that if this was about improving turnout in ballots, the best way to do that would be through allowing unions to use electronic and workplace balloting.
I end by saying I think it is important to be clear from the start that we believe that the real aim of this Bill and the proposals that go with it is to give employers new ways to take unions to court and thereby impose penalties and seek damages and injunctions against unions. I would suggest that the approach of this Bill is straight out of Norman Tebbit’s textbook from the 1980s.
Sir Paul Kenny: Paul Kenny, general secretary of the GMB—not a failing business, as some people might have you believe. We have actually, as a union, grown every year for the last 10 years, so we must be something right about appealing to people. We are opposed to the Bill. We had 625,000 members all above ground as at the end of 2014. That figure is now at 635,000.
I will not take a long time. We have agreements with global players, as well as household names that you would know, from energy companies to Asda-Walmart—the only collective bargaining agreement they have anywhere in the world is with us in this country, and they do not see, as I understand it, a need to support this Bill, either. I would describe my view personally and that of my colleagues by saying that, if this Bill was on the pudding menu at the Carlton Club, it would be called an ideological Eton mess.
Len McCluskey: Len McCluskey, general secretary of Unite, Britain’s largest union, with 1.4 million members, covering all sectors of the economy—manufacturing, transport, financial services and public services, as well as private services. I obviously agree with all the comments my colleagues have made. The Bill is a threat to democracy; I think you have been told that by a whole range of different organisations from across the spectrum of our society. It is also a threat to the cohesive nature of the communities in which we work. I am hoping that this Committee will record our views as clearly and sincerely as possible, and that the Prime Minister and the Government might rethink elements of the Bill.
Thank you. Although you have chosen not to send along national officials of various sectors in your union, which is a very large group of organisations, the same rules apply. We will have a series of questions asked, with replies and opinions given back. We only have until 4.15 pm to do that, so we need to do it quite succinctly. If not, you are using your own time. Members might ask you to go on and on, but what you want to do is get as many replies across as possible.
Len McCluskey: Sir Alan, I have brought some additional written information that I can present either now or at the end of the session.
Len, if you hand it to the Clerk, we will distribute it to all Members in due course.
Q 375 Frances, can I turn to you first? Correct me if I am wrong, but I think you said that the TUC represents 6 million workers—one tenth of the UK population. That is a huge number. Given the severe implications of the Bill for a whole range of issues and its potential impact on those individual members and, indeed, the member unions of the TUC, are you satisfied with the level of consultation and how the Government have gone about the consultation in drafting and presenting the Bill?
Frances O'Grady: Absolutely not, nor was the Regulatory Policy Committee. I am afraid that bad laws are made in haste. We were given an eight-week period over the summer holidays for the consultation period, and of course that has left huge holes and uncertainty in the proposals, which I am very happy to list separately. Very big and important questions appear not to have been considered and thrown in belatedly—for example, the proposals on removal of check-off in the public sector. Critically, this has meant that unions, employers and those with practical experience of industrial relations have not had the chance to influence the nature of the Bill in the way we should. I think it contravenes the Government’s own standards in that respect.
I have been pleased to belatedly have contact with Department for Business, Innovation and Skills Ministers and officials, but I wrote to the Prime Minister on 15 May, following the election of the Conservative Government, asking to meet to discuss precisely this issue, and I have not yet received a reply. Frankly, I think my members would see that as discourteous to working people.
Q 376 So the Prime Minister is not willing to meet an organisation that represents a tenth of our population—that is quite surprising. Are you also surprised that we are discussing the Bill, in both this format and the line-by-line sessions, without having seen the responses to the consultation process from the Government or much of the secondary legislation that the Bill gives them very wide powers to implement?
Frances O'Grady: Absolutely. Perhaps there will be a question later on this, but it is not just unions that are worried about it; employers are, too, because we believe it poisons industrial relations in this country.
Q 377 Thank you. I wonder if I could turn briefly to Dave. I understand Unison has significant concerns about the aspects of the Bill that address facility time, check-off and so on. Could you briefly outline your key headline points of concern?
Dave Prentis: I will try to be as quick as I can. To deal with check-off, these are voluntary arrangements made with employers. No employer is forced into the arrangement. We have 9,334 check-off arrangements with separate employers, 7,242 of which are in the public sector. It is a means by which we organise our partnership work and it is based on three contracts. There is the contract involving the member agreeing the payroll arrangement. It is voluntary, and they are given the option of other means of paying. There is a collective agreement with the trade union, part of which includes training arrangements, facility time and check-off. Obviously, there is also a contract between the union and the member. The systems work incredibly well. From an employer point of view, they know who is in a union.
You can have deductions at source for 14 or 15 different things, including buying a bicycle, paying crèche charges or for season tickets. Why would an employee’s contribution to their trade union be the only thing excluded? Why are the Government pushing auto-enrolment for pensions, which we think is right, while denying trade unions the ability to collect money? It singles out trade unions and will have a major effect on partnership working in health, schools and local government, because the arrangements are part of our participation arrangements.
If we have to spend all our time seeking to transfer people over, that means changing 800,000 people from check-off to direct debit. It will be a massive undertaking, using all the union’s resources. We represent 1 million women members, most of whom are low paid, and we do not see the need to disrupt arrangements that employers have been willing to enter into. It about localism. It is about the employer having the right, at the local level, to decide what agreements they want to reach with their trade union, without having authoritarian legislation preventing them from doing so. There is no logic to singling out the public sector and not the whole economy. It is based on prejudice, and it will badly affect our working relationships with the employers that recognise us.
Connected to this is time off for trade union duties. I will be as brief as I can. Our relationship with employers is based on our local reps having partnership working with them, sitting in the committees that deal with major issues, and representing people in the workplace, which the employers need for their disciplinary or grievance procedures. This is all done by activists under the time-off arrangements. If those arrangements are taken away from our people, it will mean that the joint working that has been fostered in public services since 1948 will become far more aggressive. There will be far more industrial action, and we will have major problems.
We have union learning reps who are involved in getting people to train not just as stewards, but professionally. We do dementia, mental health awareness, lesbian and gay rights and service user training. We provide training for the employers when they sign the agreement. Many thousands of low-paid public service workers benefit from this. They actually get on in life through this and get promotions as a result. All of that will end if these draconian attacks on check-off and facility time take place. They are part of the fabric of the work that we do as a union across all our public services.
Q 378 That is very helpful. Turning to another section of the Bill and the provisions that deal with picketing, we have heard the police’s serious concerns, shared by many witnesses, about the workability of a number of the proposals, in particular the proposals in the consultation relating to policing Facebook and Twitter. What has your experience of picketing been? Do you think that these proposals would simply not work?
Sir Paul Kenny: The reality is that the police are looked at in picket line situations almost exclusively as the middle people. They are independent and the co-operation with the police, which is vital for the police to do their job, comes about as a result of being seen in that light. With these proposed regulations, effectively, it is a whole new ballgame.
Please, do not anybody tell me about intimidation on picket lines. I have seen lots of it. I have seen people blacklisted from work for 20 years because they stood on a picket line. I have seen people intimidated about going back to their job by managers, but there is nothing in this Bill is about any of that, is there? I hear—it is illusionary, almost—these stories about intimidation on picket lines. My experience is that the police are effective at dealing with that, and they do it by consent and they do it clearly. It is not what trade unions condone or seek and the police operate very much on a consensus basis.
The side wagons to the main Bill—if you will forgive me for putting it that way—are issues such as the notice-posting and the rest of it. This is just beyond belief. It would be uncontrollable by us anyway—that we would be able to predict what is going to be put on Twitter or Facebook by other people, who may not be particularly connected with the union at all—but we would effectively find ourselves involved. You are criminalising what is effectively a civil right. That is why I described it earlier as just a mess. This is clearly a mess.
Q 379 Can I ask a separate question on participation? Perhaps some of the others will want to answer; I know that Len has concerns about that. As union representatives, I am sure that you all want to increase participation in ballots and to see the maximum turnout in those. We have heard a lot about the fact that the Government do not seem to be willing to consider e-balloting, secure workplace balloting and other methods. Could you briefly comment on that, Sir Paul, and then Len? I looked closely at your evidence, Len, and you speak about Central Arbitration Committee ballots, for example, where secure workplace balloting is already used. What are your views on why the Government will not accept methods that would boost the participation that they say they want to see?
Sir Paul Kenny: I will briefly answer, then pass the question to Len. In a sense, this gets to the heart of what this Bill is all about. This is a dishonest approach, because if it was really about getting more people to participate and more people to engage, you would modernise a balloting process that is actually a third of a century old. That is how old it is, but the truth of the matter is that you do not want to. The Government are not seeking to help people to participate or seeking to get conflict resolution. If you think frustrating people through a ballot will mean that the problem will go away, it will not. It will get bigger and then it may erupt in a way that is not controllable by the selected agreements. This is absolutely a dishonest approach.
Q 380 So facilitating better participation would benefit industrial relations more.
Sir Paul Kenny: Of course. I forget how many countries use this now, but a whole host of countries do. There was a quote from the Speaker’s Commission saying this was unfair, or unreliable, but I am not sure that that is actually what they did say. I went back and had a look at it and I do not think that is right. Clearly, people are talking about maybe modernising our general election participation by moving to electronic balloting. You clearly want the vast majority of people to participate. That is what you want, and it is why the thresholds issue is not one that I am particularly—I would like to see every person participate, but this Bill does not even attempt to deal with the issue of encouraging people to participate, thereby encouraging dispute resolution. What it seeks to do is to suppress it and therefore foster it.
Len McCluskey: Obviously, Paul has made the point that this is the nub of the Bill. In fact, the Prime Minister himself on 4 October, in an interview with Andrew Marr, made it clear that lots of things in the Bill can be debated and discussed. The inference was that they could be changed and amended, but he said that this was the most important element of the Bill. Everyone in this room will know that I have written to the Prime Minister suggesting that if he is genuine about wanting to increase the turnout, given that he has expressed his concerns about low turnout, which all of us have concerns about, then he should move towards, and get involved in a proper debate about, modern methods of balloting—the same balloting that the Conservative party has just elected their London mayoral candidate with—and most importantly, secure workplace balloting. All of that is feasible. The Electoral Reform Society has said that that is easily achievable with independent assessors.
You asked me, Stephen, why it is not being supported, but you need to ask that question of your colleagues opposite in the Conservative party. When you are considering the whole nature of the situation, you have to ask yourself what is wrong with secure, independent workplace balloting. The point that Paul makes about where this may lead us is something that members of this Committee, and indeed the Government in general, will need to consider seriously. We may well find that our members—ordinary, individual, decent trade unionists, who contribute massively to the wealth of our nation—are pushed outside the law. What this Bill will do, if it is not changed, is to require general secretaries such as myself to repudiate, or distance themselves from, those workers. Unite will not do that. We will not repudiate and we will not distance ourselves from people who are engaged in legitimate action.
I have said to the Prime Minister, extending the hand of pragmatism, “Please sit down with us. There is no reason why you cannot concede the principle of independent, secure workplace balloting. If you did so, the issue of thresholds would become an irrelevance. Workplace balloting would consistently produce high turnouts.” I am puzzled as to why there has not been a positive response to that offer. I am confused about why that was not snatched at immediately, unless the Prime Minister is being disingenuous. With the greatest respect, I have to say that it did not fill me with confidence when he said yesterday in Prime Minister’s questions:
“I notice that Len McCluskey now supports our position.”—[Official Report, 14 October 2015; Vol. 600, c. 314.]
That is wrong and disingenuous, and he knows that. My appeal to him, to the Government and to the Conservative members of the Committee, is: please, stop playing games and tell us why you believe secure workplace balloting is not acceptable. Nobody is giving a reason. If that was grasped in the manner in which it has been offered, a huge element of the controversy surrounding the Bill would be removed.
Frances O'Grady: Chair, I wonder if I can add very briefly to that. I know that this issue of safety and security has been raised a number of times, including by the Minister in a meeting I held with him—although I think, Nick, you actually quoted the lack of security of a postal ballot in a local authority election, perhaps in error.
The real issue here is: is electronic balloting any less safe than postal balloting? The Electoral Reform Society report confirms that it is no less safe, given the risk run in postal balloting. Of course, a number of employers, such as the Royal Bank of Scotland, use electronic balloting already to elect worker representatives to their consultative committee. We see it used across a whole range of organisations, including political ones. Frankly, if it was not safe, that selection ballot for the Conservative Mayor of London candidate should be rerun as a postal ballot.
May I just say that we have got a very short period of time left? The purpose of the session is to get in touch with you. You got in touch with us and said that you wanted to say things, and we said that we would like to ask questions of you. I have got about seven or eight Members of Parliament, on both sides, who want to do so. If you can be more succinct—that goes for Members too—we will try to get as many answers out as possible, and that may help both sides.
Q 381 I thank all four of you for coming. I am pleased that we have focused on the thresholds issue, and I agree that it is by far the most important point. In evidence on Tuesday, we heard a large number of examples of serious disruption caused to ordinary members of the public on relatively low turnouts. For example, David Martin, who is a director of Arriva buses, which operates in London, referred to the London strike in 2012. He said:
“The fact that 17% of my staff voted and 50% of the buses did not run in London over that period of time shows us that we need a failsafe, and this Bill delivers that failsafe.”––[Official Report, Trade Union Public Bill Committee, 13 October 2015; c. 7, Q4.]
My question is for Frances O’Grady. At the beginning, you mentioned thresholds in relation to the ILO, and we are now talking about thresholds in relation to e-voting. Are you saying that you oppose the threshold change in principle or that you would accept it if it came with electronic voting?
Frances O'Grady: The TUC’s position is very clear. The labour arm of the UN is very clear that you cannot count abstentions as no votes. We are arguing for a positive, 21st-century solution to boosting ballot turnouts by using modern means, including electronic balloting, in a way that is safe and secure and independently supervised. If that is what this is really about, give us the right to do it, as many of the organisations represented around this table—
Q 382 When you say “what this is really about”, this is not a conspiracy. We are extremely concerned about ordinary members of the public whose lives are disrupted when schools close, when buses and trains are not available and when London comes to a standstill on the basis of a ballot that has a low turnout. If it has a high turnout, we accept that. We accept the right to strike, and we accept many of the principles upon which your organisations are based. I have a question for Sir Paul—
Sir Paul Kenny: Paul is fine.
Okay. That is what it says.
In relation to the police, we heard this morning from a senior police officer who was referring to the ability to identify someone when a strike happens and how useful it would be for them if it were easier to identify the lead—the person co-ordinating it. I would be interested in your comments on that.
Sir Paul Kenny: I do not know how many picket lines you have been on—
Not one as an MP, I must admit.
Sir Paul Kenny: I would be happy to take you.
Look, I have been on a few, for obvious reasons—it is the nature of the job. Before I was a union official, I exercised my right to go on strike. My experience is that where picket lines are correctly policed, they are policed by consent. That normally always means that the officers strike up a relationship over a long period of time. They will introduce themselves and ask exactly who the union official is and who the steward is. The union officials normally wear some identification, but there is a fairly limited number of people. It is not 500 people in the road—the police would deal with that.
The idea that you need to supply lists of names and addresses is a real problem for us, and I will tell you again why. We know, thanks to the Scottish Affairs Committee, that thousands of working people were blacklisted—some for little more than attending a union meeting. There is nothing in the Bill about that. I see nothing that says there are protections and penalties. It is not unnatural for us to say that you have the police, who police by consent, and we support them in that. They strike up relationships with people almost every day—you might hear about the odd occasion here or there. I think that relationship is a good, professional one. Moving that on, so the police take names, keep registers and identify individuals who have attended, leads it into another area that we have incredible mistrust about.
I do not know what the police’s official reaction is, but I would have thought that this is not something they particularly like. I know what you said about one bit of evidence, but I am not certain that that is the view of all policemen.
Dave Prentis: Could I just take up the point about thresholds? We are not just talking about simple thresholds; we are talking about a second threshold in public services. We have no knowledge of which areas will be covered—it is very, very vague. The second threshold means a negation of democracy. If you reach a 50% threshold in, say, a health ballot, 80% of the members have got to vote for action, not a simple majority. It will be impossible to achieve. You are denying the right of public service workers under national agreements to use industrial action as a very final resort. That is how far it is going. You have to realise the unintended consequences of the double threshold—it is not one, it is two. It will bring to an end the right of millions of workers in public services to take action. It will never be achieved. You should be aware of that.
It is a very difficult area for us. We want to increase participation—we know that we have strength the more people participate—but you do not do it in that draconian way, because it will just lead to unofficial action and a breakdown in industrial relations in our public services. You will regret it.
Q 383 What are your opinions on the use of agency workers? What effect could that have on public safety and, where you represent healthcare workers, patient safety?
Frances O'Grady: We have very good relations and agreements with agencies and the federation representing agencies in this country. We have always worked very closely on the fair principles of employers needing flexibility to cover peaks and troughs in production, or staff absences, and doing that on the basis of equal treatment within the framework of the union agreement. This proposal is obviously quite different. We are potentially talking about employers having the right to replace wholesale workers who have democratically voted to go on strike with, potentially, untrained and inexperienced agency workers.
As we know, labour providers source from all over Europe, so is the idea that workers would be bussed in, perhaps from another country, perhaps not knowing what they are being bussed in to do, and be put in the invidious position of being asked to cross a picket line? Many employers, including the industry federation, have said publicly, very clearly, that it is absolutely wrong-headed to put agency workers in the middle of difficult disputes. It is not something we have seen in this country for 40 years or more, and frankly it is either naive or positively dangerous to deliberately seek to undermine legitimately decided and democratically voted on strikes by the use of agency labour.
Dave Prentis: It is a very final resort when a public service worker or a health worker takes industrial action. Last year was the first time in 34 years that our members have taken action over pay, and it was to achieve the Government’s 1% pay award, which the Secretary of State had denied the workers, but we reached written agreements to provide cover. We provided written agreements—we signed them with the other unions involved—on ambulance workers to make sure that ambulances were there, all ready to go in an emergency. We reached written agreements for cover on wards. Sometimes, they have better cover than they do at times when they have staff absences because they want to ensure that the critical wards are covered. There is no need for agencies to be brought in.
With the change in the thresholds and the idea of agency workers—even Margaret Thatcher did not propose this. The idea of using agency workers, combined with all the other restrictions on industrial action, is punitive. Somebody wants to attack trade unions, but they are basing it on 1980s values, and we have moved on. The Bill will not in any way affect the productivity of the country, which we should be looking at—whether competition in Britain is good enough to take on the rest of the world. We are just going to end up fighting with each other, when we should be working together to ensure that workers benefit, the organisations they work for benefit and, in our case, patients benefit.
Q 384 To continue on agency workers, we took evidence earlier from Mr Jon Skewes from the Royal College of Midwives. He mentioned how potentially disruptive it could be if midwives were to go on strike. There are two issues: the fact that it costs so much to bring in agency staff, and the need to ensure that staff have the right skills to support mums and babies. If midwives were to go on strike, it would put at risk pregnant mums and their babies. Are you saying you would not want any agency staff available at that unit if a mum was going into labour? Would you not then allow agency staff to come in to work, to help those mums and babies?
Dave Prentis: I heard Jon’s evidence, and he said very clearly to you that they put in far more workers—midwives—than they have brought out in demonstrations.
Q 385 I am just asking as a point of principle, because Ms O’Grady said she did not want to see any agency staff. In this sector, would you not want to see any agency staff covering the shifts of striking midwives?
Frances O'Grady: You are being completely disingenuous. As you may well be aware—perhaps you are not—unions have long-standing voluntary agreements with employers in emergency services to ensure that life and limb are not put in danger during a strike.
Q 386 So agency staff will be brought in.
Frances O'Grady: The agreements are between the employers and the unions. I refer you to the NHS employers that have written to Ministers saying they are concerned that this Bill, its tone and the aggressive approach taken by it are jeopardising the good, long-standing social partnership arrangements we have in health and many other public services.
Q 387 I just want to establish whether agency staff would be acceptable in this situation, if nobody else was available.
Dave Prentis: I have never known a time when we have taken action in health and an agency would be needed, because we provide the full-time staff to stay in. We give them a dispensation, and we reach agreements with management on the levels of staffing they think they need to run those services. On many occasions, we have more staff in than are in on a normal Saturday or Sunday.
Sir Paul Kenny: Do you honestly think that a midwife looking after a mother would walk out—
Q 388 No, I do not. I was just asking because there was a huge discussion about agency staff. I want to know where the principle would stop and start.
Sir Paul Kenny: Yes, but you use the most emotive issue.
Frances O'Grady: I was speaking to a midwife called Natalie who went on strike because of the rejection of the 1% offer. They made sure that no mother or baby lost out. [Interruption.]
Order. When the Chair calls for order, you will please desist. Members are asking questions. We want replies, and we do not do it as a collective; we do it individually, through the Chair. That is normal behaviour in this place.
Q 389 You represent a large proportion of the working people in our communities and our constituencies. We heard some damning evidence this morning about what happens to people who choose not to go on strike. We heard from the London fire brigade about how difficult it is for people who choose not to go on strike to get into their fire stations and carry on with their duties, and how they are possibly putting themselves at risk by continuing to go into work.
We also heard evidence from SITA. In its written evidence, it told us that non-striking workers during a strike in Doncaster in 2011 had been subject to “sabotage of private property”. Its evidence goes on to say that
“strikers visited the homes of workers, slashing car tyres and throwing paint stripper over a car. The Working Men’s Club used by a non-striker was contacted by a striker…who threatened the steward of the club that if they allowed him to use the bar, the club would be vandalised. The club barred the non-striker.”
How are you able to represent your non-striking union members and other workers? Who is supporting them?
Len McCluskey: That is an extraordinary thing for you to put forward.