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

Volume 749: debated on Monday 11 November 2013

Committee (2nd Day)(Continued)

Amendment 154

Moved by

154: Clause 38, page 45, line 25, at end insert—

“( ) to offer ACAS conciliation between complainant and respondent before making an enforcement order”

My Lords, Amendment 154 is designed to provide for ACAS to be able to intervene when there is a dispute about a register. ACAS has a very high reputation for intervening in difficult situations and finding its way through them. We think that there could be some difficult situations if the assurer gets going in a number of circumstances. With the agreement of the parties and the certification officer, it would be useful for ACAS to be deployed before an enforcement order is issued. I beg to move.

I shall speak briefly to the amendment. As the Committee will know, I was chair of ACAS from 2000 to 2007. To that extent, I suppose I have an interest in attracting work to my former organisation. If the Minister is correct in saying that the Government are not looking for confrontation in Part 3 of the Bill—some of us still need convincing of that—they will be looking for ways of avoiding the ultimate sanctions that are contained in Part 3. I think this offers a way out of an impasse. It might help the parties, particularly if there are difficulties in agreeing factual statements, if ACAS were to be invited to intervene. The Minister will know that, if this is not specified, ACAS will not be able to intervene. There needs to be a statutory requirement before it can become involved. It is important that this is written into the Bill. I support my noble friend Lord Monks on this amendment.

My Lords, it is not entirely clear why this amendment is being proposed. I imagine that there could be concerns in relation to vexatious allegations or allegations by an employer seeking to undermine a trade union’s ability to take industrial action. In practice, where an inspector conducts an investigation, there is no complainant or respondent with respect to that investigation. It is not clear why ACAS conciliation between a union under investigation and a potential witness would ever be appropriate in the context of an investigation to establish whether a union was in breach of its duties under Section 24. Therefore, I hope that the noble Lord will feel able to withdraw his amendment.

I am well beyond the hat-trick stage of getting disappointing replies this evening. I think that an opportunity is being missed here. ACAS could help to smooth the introduction of these measures, and I am sorry that the Government are not a bit more interested in this subject. However, I beg leave to withdraw the amendment.

Amendment 154 withdrawn.

Clause 38 agreed.

Clause 39: Enforcement

Amendment 155

Moved by

155: Clause 39, page 46, line 21, at end insert—

“( ) must specify to the unions the provisions with which he or she considers the trade union may have failed to comply and give preliminary written reasons for that view which are sufficient to enable the trade union to know the case it has to meet and to enable it to make representations to him or her;( ) must disclose to the union any inspector’s report under section 24ZI in sufficient time for it to address that report in any written representations”

My Lords, Amendments 155 and 156 stress the need to give unions adequate opportunity to make representations before enforcement action is taken. It gives them the chance to see what is in an inspector’s report before the certification officer is called upon to declare that a union has failed to comply with its duties. In other words, they are given a chance to put things right before being arraigned before the registrar of trade unions, who is the certification officer. Providing a chance to put things right before things become public and perhaps more entrenched seems to us to be a matter of good procedure in this kind of case. I think it is a useful suggestion and I should like to hear what the Minister has to say about it. I beg to move.

My Lords, during the break I had a look back over the points that we have been making to the Government. A bit like my noble friend Lord Monks, I am slightly surprised that the Government have taken such an aggressive line towards what we are saying. If the Minister recalls my contribution to the debate on the group before this, I was saying—I thought in as conciliatory a manner as possible—that we were trying to offer a series of improvements to what we think is a bad Bill. However, not a single one of them was taken up.

In our opening two debates, I asked a total of, I think, 14 questions. I have not had answers to any of them and I am under pressure from my colleagues here to keep pushing the Minister to come back with at least some general responses if he cannot give detailed ones. However, I can hope—because I know that he is an honourable and decent person—that I will get a letter at a later date that perhaps covers them. I hope that that will be the case.

On the ACAS amendment, which was meant in the spirit of support—there was no particular difference of principle here—all we got was, “I can’t really understand why the Opposition would bother putting up this amendment”. When some of these amendments were put forward in the other place, we at least had a decent reply from the Minister. Although he did not accept all of them, he did accept one or two points, and at least there was a sense of dialogue and debate. I am very disappointed at the way that this session has gone today. I hope very much that, when he comes to reply, the Minister will make a considered response to the points raised by my noble friend.

Perhaps I may attempt to lower the temperature slightly. There was certainly no intention of being peremptory, particularly with the short response that I gave on the previous group of amendments. I can only say that, if it would be helpful, I would be more than happy to write to the noble Lord and indeed to the noble Lord, Lord Monks, with some further details on that reply, which I took as read as being rather short. There was absolutely no intention of dismissing it, if that was implicit in the noble Lord’s reply.

As for the questions that the noble Lord, Lord Stevenson, has raised during the debate today, which I much enjoyed, I have already pledged to write to him to answer any questions that he has raised. Indeed, he has raised quite a few, so I hope he will accept the fact that I write letters and like to get into the detail. The very least I can do is answer the questions clearly and fully, and also address some of the concerns of the noble Lord, Lord Monks. I hope that that is very clear to the House today.

I shall now respond to Amendments 155 and 156, which seem intended to make it explicit that before the certification officer may make a declaration that a trade union is not complying with its duties in relation to the membership register, the trade union must know the reasons why. The amendments also require the certification officer to disclose an inspector’s report to the union. This is so that the union can make effective representations on the case against it before the certification officer makes any decision. I am happy to reassure noble Lords that this is already covered by current law and what is in this Bill. A union will have the opportunity to present its case in written representations to the certification officer before a declaration is made. The certification officer may also allow the union to make oral representations.

Unions, like other bodies, are entitled to a fair and public hearing, within a reasonable time, by an independent and impartial tribunal. This is required by Article 6(1) of the European Convention on Human Rights, and is met in the Bill’s enforcement provisions. In practice, a union may have several chances to reply to any allegations and put forward a defence. Any inspector appointed is likely to make a series of inquiries, which will include dealing with the union directly, before providing a report to the certification officer. If the inspector’s report suggests that there is evidence of a problem, the union still has a formal opportunity to present its case before any declaration is made. The union would not be able to do this without seeing the evidence, including relevant sections of the inspector’s report. So this is the practical effect of what is already in the Bill.

Finally, the union can appeal decisions of the certification officer to the Employment Appeal Tribunal. I am confident that the current provisions give unions plenty of opportunities to put forward a defence before any declaration is issued, and I hope that the noble Lord will withdraw his amendment.

My Lords, that was a rather legalistic reply. The Government are taking a rigid approach to this. I am sure that the whole thing is a sledgehammer to crack a nut, completely disproportionate to any problems with union administration that may exist in the fertile imagination of noble Lords on the other Benches. Anyway, the Minister has told us straight that he is going to stick to the provisions of the Bill and that he does not find the amendment particularly to his liking. I beg leave to withdraw the amendment.

Amendment 155 withdrawn.

Amendment 156 not moved.

Clause 39 agreed.

Amendment 156A

Moved by

156A: After Clause 39, insert the following new Clause—

“Part 3: Commencement

The provisions in this Part shall not come into force until the Secretary of State has placed in the Libraries of both houses a review of the burden of regulatory responsibility that this Part will place on trade unions, including any necessary rule changes and their timeframe.”

My Lords, this is an important amendment on an important topic, on which other amendments have been tabled in the names of my noble friends Lord Whitty and Lord Lea. It is important that union administration processes are taken into account in introducing this legislation, and Amendment 156A suggests that the Act should not come into force until the Secretary of State has placed in the Libraries of both Houses a review of the burden of regulatory responsibility that Part 3 will place on unions, including the need for them to make rule changes and the timescale for doing that.

The purpose is to give unions adequate time to comply in a way that is cost effective, economical and practical from their point of view. It is very much in line with the Regulatory Policy Committee report that we discussed earlier at some length and which drew attention to the lack of reliable information on the increased burden imposed on unions. That was one of its major reasons for giving the Government the red card in its report and on the whole exercise.

It also highlights the fact that unions have these procedures for making changes in their constitution, and it will be necessary, as the Bill recognises, that unions will have to make some changes to the rules. In the union that I was familiar with, a rules revision conference was held every few years. Often the Government of the day were sensitive to the union timetables, and so on, particularly on a matter such as this. It hardly seems a matter of life and death, even to the aficionados on the other side, in terms of the importance that the Government attach to it. We know already that the BIS estimate of around £461,000 is an underestimate. It will cost unions a lot more than that. Before the Bill is enacted we need a better idea of the costs that will be incurred. We need an approach that is reflective of the union’s need to take steps to comply with the law properly and effectively. I mention again the need to keep costs down.

I am sympathetic to the amendments in the name of my noble friends. They seek to specify a time limit, which would be useful. Some unions have longer timescales for making changes. I mentioned one that did it every few years. I hope that we will get sympathetic and sensitive understanding, especially given the complete lack of information in the impact assessment, as pointed out by the Regulatory Reform Committee, on the Government’s figures and the regulatory burden being put on unions. They are shoving a load of red tape on to unions and it is important to give the unions at least a period of digestion that errs on the side of minimising a little bit of that red tape. I beg to move.

My Lords, in the course of thinking about this last week I went to the Public Bill Office. I do not know whether I should mention the clerk’s name, but it was Simon Burton and he is right there. I wrote something down and asked whether we could put 1 January 2116. He said, “2116?”. I said, “Yes”, and he said, “Don’t you mean 2016?”. I said, “Oh, I probably do, but hang about a minute, why not make it 2116?”, but I chickened out.

Anyway, the more this discussion goes on today, the more obvious it is that we are juggling lots of timescales and deficiencies in the procedure so far, such as no pre-legislative scrutiny, no scrutiny by the Constitution Committee of the House of Lords, no discussion of post-legislative scrutiny, and so on. Yet, everybody knows, and the Minister has said it several times, that ostensibly it is because of the difficulties that unions have in getting their membership lists up to date. I wonder why that is not true of electoral rolls, but let us stay with what we are on. This will take some time, so what is the connection between that and commencement dates?

The other point that I want to bring into this discussion concerns the pause. The pause for Part 2 has been for a particular purpose, but the pause in Part 3 is simply a consequence of the pause on Part 2. I do not know why the Minister is looking puzzled, but there is de facto a pause before we have the next discussion at the same time as Report of the Bill. Am I not right? Yes, of course. That is how it is. So, between now and the new year all sorts of people, including the Cross-Benchers and so on, will be thinking about all sorts of ideas.

In the middle of this I happened to read, being an insomniac, a very interesting discussion in the Moses Room led by the noble Lord, Lord Norton of Louth, on the importance of commencement dates. Indeed, I noticed that my noble friend Lady Royall took part in that discussion. I was quite amazed that commencement dates are a key part of our constitution, but even Ministers sometimes do not know who takes the decision. Certainly as often as not there is no further parliamentary discussion or decision on them, yet I suppose that we could find, for the anoraks on these matters, some reference to the Joint Committee on Statutory Instruments and so on. Therefore, I think that we could bring into the mix the problems that have been mentioned for our consideration between now and the new year.

This thing is half-baked. One of the reasons it is half-baked is that it should be in the oven for at least an hour but has only been in for 20 minutes. That is one of the reasons it is half-baked. We should take this in the spirit that it is intended—namely, where should commencement dates come in the Bill? Obviously, we are not advocating that we pass legislation that is never implemented. That is, however, not as stupid a comment as one might think because apparently a huge amount of legislation is never implemented. Just read the report of the noble Lord, Lord Norton. He was the chairman of the commission on this very question. That might be nice, as I say, or implemented in 2116.

De facto, I thought somebody might notice that there is a general election coming up between now and 2016. All I would say about that is—and it cuts both ways—in 2016 and those sorts of periods, people will at least not be thinking all the time about how these matters may affect a general election. They are matters that have a serious footprint into the trade union movement, as we demonstrated this evening, including all the different timetables of changing union rules. The Minister may not have tried to deny that, but he did not appreciate that one cannot simply go to the next conference in Blackpool and say, “We’ll put a rules revision on the agenda”. There are rules for the procedures and timings of rules revision conferences.

Therefore, I think at the moment—there is no voting this evening—we would like to link this proposition with the one that my noble friend Lord Monks referred to. We are trying to relate this, with considerable difficulty, to the realities on the ground. If something in this field is to be done, it has got to be done within a timescale that allows for post-legislative scrutiny. I will ask the Minister a specific question about that. Where does post-legislative scrutiny now fit into his conception of where we will be going on this? I look forward to his comments.

My Lords, the Government would be wise to accept at least some of the spirit of these amendments. The first of the amendments deals with the whole issue of getting a better grip on what the impact really is. We have had a pathetic impact assessment put before us—one that bears no relation to any costs that any of the trade unions, whatever their persuasion on other matters may be, would recognise. We have not managed to assess what the impact would be on the resources and costs of the certification officers. We have a pause now in which the Government could put that right so that the next time we come to debate the issue we will have more robust figures, perhaps some degree of consensus about what it means and at least a range of figures we could sensibly talk about. At the moment we have virtually none of that.

The heaviest comment on it has been the Regulatory Reform Committee’s view that all of this is unsupported in the normal way in which we approach new regulation. The Government have got to get out from under that at some point and they have time to do it. Therefore the requirement in the amendment of my noble friend Lord Monks that more information should be put in the Library before we return to this issue on Report would be sensible from everyone’s point of view, particularly that of the Government.

As to the commencement date, obviously the Government are reluctant to put in a later commencement date than they would like. On the other hand, put at its gentlest, we know that the Bill is a bit of a mess—and not only this part. There is serious criticism of the scope of Part 1 and very serious criticism, concern and widespread apprehension about Part 2. By being gung-ho and requiring that nearly all of the clauses within the Bill should come into effect immediately the Act is passed, the Government do not serve their cause well. They certainly do not serve well the cause of implementing any part of the Bill because they will need to take a large chunk of civic society with them, including in this respect the trade unions and in other respects a wide range of organisations.

It is therefore not sensible for the effect of 90% of the Bill to start on day one. The Government will come back and say that that is not really what it means because from day one they can draw up the secondary legislation, and so in that sense it is the secondary legislation that will have a commencement date. That is all very well but, given that there are controversial issues such as this in all three parts of the Bill and that we have not seen any draft secondary legislation—and will not see any by the time we reach Report, as I understand it—a judgment by ourselves cannot be made and, more importantly, cannot be made by those organisations that are affected by each of the three parts of the Bill. A later commencement date for the whole of the Bill, with proper consultation on the secondary legislation, would be a sensible move.

Of course, there is such a thing as a general election. I hesitate to return to an earlier discussion, provoked by the noble Lord, Lord Tyler—I nearly called him “my noble friend”—that revealed that there was at least some suspicion or understanding that this would affect political funding. However, if that is the case and it is an important motivation for the Bill—and if the Government refuse to go further than the rather Delphic statement that the Minister repeated at least twice, which got us no further down the line—we know that there is not going to be a deal between the parties on political funding this side of the election. However, whatever our backgrounds, we all recognise that there is a possibility at some point we will have to change the rules in relation to political funding generally. The only way we can do that is by consensus. We will not do it before an election but whoever wins the election might be in a position to do it afterwards. That is an important consideration. If, so close to an election, the Government appear to be taking pre-emptive action on this front, affecting one party only, the possibility of a multiparty agreement will become more remote after the election.

In a sense, that is a separate argument. I am trying to look at it in part from the Government’s point of view, as they seek to deliver this with a reasonable amount of support from civic society. In any case, they will need to think of a fairly long timescale for implementation. If they do not, they will be in trouble not only with the trade unions, but with a large chunk of civic society and those who expected this Government to deliver on lobbying in way that actually adds up to something. In that case, the Bill will be seen as a damp squib on the one hand and a provocation on the other. I do not think that this is in the Government’s interests.

I suggest that the Minister should take this back to his colleagues, talk to them and agree that we should have a somewhat later commencement date—probably for all three sections of the Bill but certainly for this one.

My Lords, as has been made evident from the speeches that we have heard, this is about ensuring that, should the Bill progress and be brought into law, it will operate with a reasonable chance of success. As we have heard, it puts additional red tape on a number of bodies which are technically independent. They are part of civic society admittedly, but not those which are necessarily controlled by any one group. They are self-governing or self-operating, so it will take time for it to be absorbed.

There are new procedures and assurers—if that is what they are to be called, it is an ugly name—who will need to be nominated on a list to be promulgated. There have to be appointments made, new reporting processes brought in and inspections, and all sorts of procedures relate to that. We have a plethora of activity and burdens on trade unions that need to be bedded in. If the Government were thinking about the effectiveness and efficiency of the operations, it makes sense to give it time to bed in and get the best chance.

We have also heard from those who know—and perhaps they know a lot better than those who are advising Ministers—about the practical difficulties of trying to get changes into all these independent bodies in sufficient time and on an appropriate scale in order that the legislation can be made to work effectively. What does a bit of a delay cost us? We might return to that.

This is also about trying to do legislation properly. I made plain in my earlier remarks that the Minister’s letter-writing needs will prey heavily on his mind over the next week or two, because of all my questions. About seven of them were about the report from the Regulatory Policy Committee on the impact assessment. I will run over one or two of them, because they raise issues that are not susceptible to the timescale to which we are told the Bill is being progressed. In effect, what was called for was a new impact assessment. I asked the Minister whether we will have one, but he did not respond.

Will there be new figures? Will the RPC be able to look at and make comment on them? Will the figures do what the RPC requests of the Government and involve those stakeholders and others who were not properly consulted before? Will there be an opportunity for the Bill to be refined, to answer the question that the RPC asked about how accurate an updated membership register would have to be for a union to be considered compliant with the new recommendations? Unless that is made clear, it is very hard to assess or even guess whether the costs that will be placed on the trade unions are worth the additional assurances available to those who will in time wish to depend on that register.

All this is criticised to a great extent in the impact assessment report and, therefore, we assume a new report will need to be put in. The Minister said that part of the blame for this was because those carrying out the impact assessment did not get sufficient responses from the trade unions. That may be because trying to consult with a body in a four-week period starting at the end of July and finishing before the end of August is not likely to maximise the chances of getting a good response.

There may be other reasons, but it is more that there is a lack of understanding about how independent bodies such as trade unions operate and how to get the information that is available within them for compliance. It does not exactly fill one with confidence to read in the report from the RPC that the impact assessment provides figures in relation to small unions that seem to have been based on one respondent. The Government could do better than that. That will take time and compete with the other issues that we are talking about and, therefore, again plays to a suggestion in the amendment that there should be a delay in commencement until such time as the Secretary of State has placed in the Libraries a review of the burden of regulatory responsibility. That is just one proposal but others that have been discussed by my noble friends suggest a date that would allow sufficient time for the legislation to bed in. I recommend that proposal also because it would provide an alternative approach.

This point regarding commencement will come back, as my noble friend Lord Whitty mentioned. There are other commencement issues regarding Parts 1 and 2. Other amendments in the group technically relate to Part 4 and we will therefore have an opportunity to debate them again. I invite the Minister to give us a considered response, unless he feels that behind all this the “drop dead” date of May 2015 will suffice, and stating anything other than what he previously said would therefore merely be provocation.

My Lords, Amendments 178, 179 and 180 would amend Clause 41 to delay Part 3, either in whole or in part, from coming into force. I have assumed that the noble Lords intend the amendments to be applied together to delay implementation to 1 January 2016 at the earliest.

Noble Lords are clearly anxious that trade unions should be given sufficient time to prepare. I entirely share this sentiment. I hope that, to this extent, I can offer a positive and emollient answer to the noble Lords, Lord Monks, Lord Lea of Crondall and Lord Whitty. I agree with the noble Lord, Lord Stevenson, that it makes sense to allow time for bedding down or bedding in—I am not sure which but we will go for both for the moment. Unions will be required to amend their rules, which will need agreement from their members. They will also have to identify an eligible assurer and contract with them. Again, agreeing those contractual arrangements will take time. I am sure that noble Lords opposite will agree with me on that.

Moreover, many unions will be part way through a reporting year if the provisions were to come into effect immediately. This would mean deviating from standard legislative practice whereby provisions are not applied retrospectively. That is why the measures in Part 3 will not be applied retrospectively. Unions will be required to submit their certificate for the first full reporting year after the changes become law. Given that unions can have different reporting years, the point at which the changes take effect on each individual union will vary. However, all unions will have up to five months from the end of their reporting year to submit their certificate to the certification officer.

Noble Lords may wish to note that should the provisions in Part 3 come into effect in March 2014, a union whose reporting year ends on 31 March would not need to submit a report for the year ending 31 March 2015 until the end of August 2015. A union that reports every calendar year would have even more time to prepare; it would have to submit its report for the year ending 31 December 2015 by the end of May 2016. Furthermore, even if Parliament granted Royal Assent by March 2014, it is likely that the provisions in Part 3 may come into effect later. The Minister for Employment and Consumer Affairs in the other place has given an assurance to consult on the order for the eligibility of the assurer, which will take time.

I turn to Amendment 156A. A copy of the impact assessment prepared by BIS was placed in the Libraries of both Houses on 11 September. This was mentioned earlier by the noble Lord, Lord Monks. It drew on responses to a targeted consultation in the summer when we sought evidence of the impact. We engaged specifically with trade unions on this point at a meeting arranged by the TUC with some of its affiliates and BIS officials. We are continuing to work with the Regulatory Policy Committee to consider how to improve the evidence base. Should unions or anyone else have any further information, we should be pleased to receive it. We will place a revised copy of the impact assessment in the Libraries before the legislation is commenced.

Can the noble Lord repeat that last phrase? Before which date will a copy of the impact assessment be placed in the Libraries?

I am being particularly dense and time is moving on but we are in Committee. Are we saying that this impact assessment may not be available to us before we conclude discussion of this part—in other words, that the Bill may have passed through its proceedings in the Lords before the impact assessment is placed in the Libraries? The noble Lord said it was the commencement date.

It is indeed. The noble Lord, Lord Lea of Crondall, raised the issue of post-legislative scrutiny, which is a fair point to make. It is good practice to evaluate the effect of legislation once it has had time to have an impact. We would expect to do this in due course so I hope that is some reassurance to the noble Lord.

The noble Lords, Lord Monks and Lord Stevenson, raised the issue of a revised impact assessment. I have already touched on the impact assessment in my earlier speech but I emphasise that the impact assessment that has been published is based on the quality of evidence we received. We will be seeking to improve it but to do so will need more data than have so far been provided. We will be working on this and will present a revised impact assessment before the legislation is commenced, which is what Amendment 156A seeks.

The noble Lord, Lord Whitty, raised the issue of having an opportunity to see the draft secondary legislation. The Government have already said that there will be consultation on the order to set out the eligibility criteria for the assurer. We will continue to engage unions and others as we develop the detailed implementation of the provisions to support a smooth transition.

The noble Lord, Lord Whitty, returned again to the issue of whether the Bill was intended to regulate the way in which unions choose to pay political levies. He mentioned that I had mentioned it once, maybe twice, before. Whether it was once or twice, I now emphasise it a third time to be absolutely clear over our position. There is nothing in Part 3 that is intended to change how unions do this. The Government’s intention is to provide greater assurance about the accuracy of membership registers. There is no wider intention and regulation of union political funds is a different part of the 1992 Act from that amended here. We have offered, as I said earlier, to assist the leader of the Opposition with his planned reforms if he wishes. I cannot be any clearer on re-emphasising this point. I ask the noble Lords to withdraw, or not to move, their amendments.

My Lords, during the Minister’s reply, which I have to concede was a bit more interesting than some of his others, there were one or two chinks of light. There was something of interest in the timetabling and lead dates, although they are well short of where unions need to be to do this in an economical and sensible way. There is still quite a lot of pressure for some unions in particular to get these things done. The view on our side, which has been consistently expressed, is that this is a remedy that is looking for a problem to solve. There is no requirement for it. As the impact assessment says, there is nil effect and nil impact. For a Bill that is so marginal to anything important, it is extremely disappointing to see a department that is committed to economic growth and stirring the British economy to a higher level of performance wasting time addressing a non-problem. We thought the suggestions from this side, about giving us plenty of time to make adjustments and explain it to people, deserved a better fate than the one that you have just given us.

I welcome the BIS talks with the TUC. I hope that the Minister will be in listening mode during those talks. I also welcome that some adjustments have already been made as a result of those talks, and what the Minister said about there being nothing in this Bill that will affect political funds.

I hope the noble Lord, Lord Tyler, is not too disappointed because I thought he had rather ambitious hopes for the Bill as the first step towards a new settlement on party funding. I do not think that it is; I do not think that it is that significant. Otherwise, these Benches and his Benches would be absolutely full.

As the Minister says, I am sure that we shall return to the issue about commencement dates at the next opportunity and I now withdraw the amendment.

Amendment 156A withdrawn.

House resumed.