House of Lords
Monday, 11 November 2013.
Prayers—read by the Lord Bishop of Oxford.
Introduction: Baroness Goldie
Annabel MacNicoll Goldie, having been created Baroness Goldie, of Bishopton in the County of Renfrewshire, was introduced and took the oath, supported by Lord Sanderson of Bowden and Lord Selkirk of Douglas, and signed an undertaking to abide by the Code of Conduct.
Power of Attorney
To ask Her Majesty’s Government what steps they will take to make it easier to nominate a power of attorney.
My Lords, the Government have taken the following steps to make it easier to make a lasting power of attorney. First, the Office of the Public Guardian has released a test version of a digital tool which allows donors to make lasting powers of attorney online. Secondly, it has redesigned its paper forms to make them easier to follow and is consulting on proposals to combine the application processes of the two types of lasting power of attorney and to introduce a digital signature. The fee for registering a lasting power of attorney has been reduced from £130 to £110 from 1 October this year.
My Lords, I wonder who has told who about that reduction because I was quoted £200 by the lawyers. Many women, and maybe men as well, are thoroughly put off by the amount of money it will cost simply to do what one used to do. If the Minister asks his more elderly relations he may find out that one used to get a bit of paper, write on it “I give you power of attorney”, sign it and send it to the bank—that is all you had to do. This whole business seems to me unnecessarily expensive and time-consuming. I ask whether we might return to having a simple piece of paper.
My Lords, I have to tell the noble Baroness that the number of older relations I have is becoming increasingly small. I take the point that she made, but we also have to be careful in dealing with matters where often quite considerable sums, in terms of inheritance, are in question. There has to be an orderly process that can be much better checked than the noble Baroness’s scrap of paper with a line on it. We are trying—and the Office of the Public Guardian is making every effort—to consult on this, and the consultations end on 26 November. We are trying to simplify and make it easier for people to do this without having to pay expensive legal fees.
My Lords, this is the document to register power of attorney: it is 12 pages chock-full of questions, cautions and warnings. It is the most verbose document that I have had to deal with either for myself or for those I have represented in over 30 years in public life. Of course there must be safeguards in all this. A doctor has certified in this document that I am capable of making decisions—I have all my marbles. Why then do I have to name from two to five people to be told that I am registering power of attorney so that they can object to it? Why? Can this bundle of red tape and jargon not be withdrawn, consolidated in a new draft and put in the Library so that I and people such as the noble Baroness, Lady Trumpington, who said it all, and lots of other people who might want to see this—solicitors and what have you—can inject some common sense into it?
The last thing that I said to my officials was, “You realise I’m going to be addressing an informed and vested audience?”. I will make sure that the Hansard of these exchanges is taken as part of the public consultation, which I emphasise ends on 26 November. The reason for the consultation is very much to do with the noble Baroness’s point: there were, and continue to be, complaints about how complex this matter is. We hope that the outcome of the consultation will be a much simpler process which people can use.
My Lords, I am very glad to hear from the Minister that simplification is intended. Recently I have had to deal with these complications because unfortunately my sister is in the early stages of Alzheimer’s and it has become necessary for me to find somebody to assume the power of attorney in that case. It is not easy. It is not only complicated and expensive but the person whom you nominate, and who has been nominated by me via our lawyers to handle the power of attorney, has his own job to get on with. It is also very time-consuming for the person who assumes it. I am grateful that a relative of mine has taken on this task, but it needed a bit of persuasion. It is not only the expense; it is also the time involved in doing it. It is important that it be really simplified so that people can take this job on. This is increasingly important as we are dealing with an older population in which people require this kind of service as simply and quickly as possible.
My Lords, the noble Baroness has put her finger right on it. We all know the change in the structure of the population that is going on. I am always amazed when I am in the corridor and pass a colleague who I know is as old as I am and who says, “I’ve got to go and visit Mother this weekend”. That is one of the responsibilities; and because of these increasing responsibilities, we have to make sure that as well as making this process simple, we also make it fraud-proof. That is the balance that we are trying to get.
My Lords, I am taking my life in my hands a bit by confronting the two noble Baronesses but, as an old solicitor, I wonder if my noble friend Lady Trumpington has taken account of the fact that the piece of paper that she so rightly said she could sign and waft off is still available to her. She can still go to a stationer and buy a general power of attorney for a pound, and that is all that she will need to pay. The problem is that the lasting power of attorney created in 2007 deals with people who have lost their capacity to command and deal with their own affairs. That is a hypersensitive issue, and within a family many people might be deeply uneasy about who gets that power, particularly in terms of life and death issues. Perhaps the answer is not as simple as it might at first appear.
My Lords, I am extremely grateful for that question. I look forward to witnessing the meeting of my noble friends Lord Phillips and Lady Trumpington in Peers’ Lobby after Questions.
To ask Her Majesty’s Government what legislation or other proposals they have to update the protections for consumers from unfair practices.
My Lords, rogue traders who mislead and bully consumers, some of whom are the most vulnerable in our communities, are a blight on society. Research by Consumer Focus found that they cause more than £3 billion-worth of detriment to consumers each year. The Government recently announced legislation to make it simpler and clearer for consumers to fight back by giving them new rights to seek redress and, where appropriate, compensation for the damage that they cause.
My Lords, we have range of people and companies ripping off people who play fair: those who mis-sell PPI, rogue claims management companies, dodgy builders, people selling fake goods and people breaching copyrights. For a whole range of services, the Government use premium-rate phone lines so that when people phone for help and advice they pay over the odds for the privilege. For example, when bereaved people phone the Bereavement Service for help and advice they are charged over the odds. Is not the Minister ashamed of that? When are the Government going to put people first?
We agree that it is inappropriate for vulnerable people to pay high charges for accessing vital public services, and we are clear that a more consistent approach is needed. The Cabinet Office now runs a cross-departmental group to consider customer telephone lines. This group has made some good progress in drafting guidance on prefix number selection and establishing best practice. We will publish the guidance and have a standing remit to ensure that it is kept up to date.
My Lords, will my noble friend look at the plight of some bank customers with dormant accounts? Is he aware that a current account can be declared dormant after a year’s inactivity and a deposit account can be declared dormant after just three years? It can take six months for people to get their own money back in those circumstances. Will he ask the banks to notify customers more clearly and more readily that their accounts are to be made dormant and will he try to get the banks to speed up the repayment of people’s own money?
The Dormant Bank and Building Societies Accounts Act was passed in November 2008 and included a requirement for the Government to undertake a review. The legislation set out the specific questions that the review should cover: for example, how many banks and building societies have transferred balances; how much money has been transferred and how promptly; and how effective the arrangements have been for meeting claims. HM Treasury is currently undertaking the review. The closing date was 21 October, and the report will be laid before Parliament by March 2014.
My Lords, I declare an interest as chair of the National Trading Standards Board. The Minister’s department is currently consulting on a new piece of consumer legislation. Will he tell us why it is in the interest of consumers that this legislation will require that two days’ notice is given before potential rogue traders are inspected by trading standards officers? Why is it in the interest of consumers for potential scammers—importers of counterfeit or unsafe goods—to have two days in which to destroy the material and the records that might otherwise incriminate them?
My Lords, the powers strike a balance between protecting civil liberties and reducing burdens on business and enabling enforcers to tackle rogue traders. Requiring enforcers to give 48 hours’ notice before carrying out routine inspections will benefit businesses by making it more convenient for them to accommodate these inspections. However, notice need not be given, for example, where it would defeat the purpose of the visit, as when a breach is suspected, such as with counterfeit DVDs.
My Lords, will the Minister, in responding to the request of the noble Lord, Lord Kennedy, for protection of consumers from unfair practices, look at helping those people who find that, without their knowledge, they are signed up for membership of trade unions or the Labour Party?
My noble friend may be aware that there is a Bill going through Parliament at the moment and I am at the Dispatch Box later.
My Lords, it is not just consumers of the big six who are taken advantage of by their providers; many vulnerable customers will have to pay more in rent than they should, are taken advantage of by the banks and are unable to shop around. Will the noble Viscount tell us whether the Government are really on the side of consumers and, if so, why they wound up Consumer Focus, whose report he has just quoted? If they are on the side of consumers, what will the Government do to strengthen the power and remit of ombudsmen so that people can get redress for poor service?
The noble Baroness will know that we are on the side of consumers and that we have updated some legislation already, particularly focusing on estate agents. She brought up the issues of tenancies and lettings. All letting and property management agents will have to belong to an independent redress scheme; the process for redress has become much clearer since 2010.
Is the Minister aware of the disgusting practice of payday lenders of targeting their advertising at children’s television programmes? Why do my grandchildren have to be subjected to that kind of advertising when they are watching “Peppa Pig”?
The subject of payday lending has taken up much time in your Lordships’ House. The noble Lord will know that we are taking action. The FCA announced last month that it has proposed tough action on payday lending, which includes a focus on children, and we welcome these proposals.
Nuclear Power: Procurement
To ask Her Majesty’s Government what steps they are taking to ensure that United Kingdom suppliers will be called upon to provide the components that will be required in building any new nuclear power station in the United Kingdom.
My Lords, the Government are committed to ensuring that the UK supply chain is able fully to capitalise on the opportunities that will come with the UK’s nuclear new-build programme. Investor confidence continues to grow with projects being taken forward by three consortia. These projects have set out plans to develop around 16 gigawatts of new nuclear power in the UK, which could support an estimated 29,000 to 41,000 jobs across the nuclear supply chain at the peak of its construction.
I thank the Minister for that reply. Recently, one of the EDF executives called into question the competence of the UK to supply high-tech equipment for the Hinkley C power station. This contradicts a current capability report of the Nuclear Industry Association, which maintains that, apart from a few large-scale items, the UK could supply almost all of the mechanical and electrical equipment, including the controls and the instrumentation. There are some essential misgivings concerning the possible wilful exclusion of competent UK suppliers. Will the Minister declare more fully what steps, if any, are being taken to protect their positions?
My Lords, EDF has indicated that around 57% of the opportunities in the construction of Hinkley Point C would come to the UK, while Horizon has estimated that it is expected that around 60% of the value of the first plant will be locally sourced. Nuclear is a key growth industry that provides highly skilled jobs. The 16 gigawatts of new-build capacity planned by industry would create a very large number of jobs, as I said. We in this country have the capability and the capacity.
My Lords, is my noble friend aware that while there will be a wide welcome for the long-awaited return to nuclear power in this country, and not least, that it will be at Hinkley Point, which will make Bridgwater a boom town for many years, there is great disappointment that it is thought that it will not generate any electricity before 2023? Great efforts have been made by many people, not least by the landowner, who in a very constructive approach allowed all the preliminary groundwork to be done before any planning permission had even been given, to try to help this programme forward. Will the Minister ensure that every effort is made in her department to ensure that there is no hold-up with the state-aid permissions that we need to get out of Europe, so that we can get ahead with this programme?
I absolutely agree with my noble friend. He will, of course, be aware that these conversations are ongoing. Very constructive conversations are taking place and we are trying our level best to ensure that there will be no hindrance or obstruction.
The Minister’s previous portfolio involved skills that are found in many of the businesses—small and medium-sized enterprises—that will act as suppliers. The Government and the previous Government have focused on those businesses, which provide more than 75% of the workforce. They are absolutely ripe for apprenticeships, which again, is another government aspiration. Can the noble Baroness give us more certainty that apprenticeships will not be damaged in the way in which this business is carried out?
The noble Baroness is right about the skills agenda. We have created the Nuclear Energy Skills Alliance, which brings together all the key skills bodies related to nuclear, to collaborate and co-ordinate all the skills development in the sector. However, she is absolutely right—there is plenty to do. We are pleased that this sector is progressing rather than standing still.
My Lords, first, will my noble friend place copies in the Library of the memorandum of understanding signed by GE Hitachi with Babcock and Rolls-Royce, which allows them to participate in the manufacturing of components for the replacement of Oldbury and Wylfa power stations? Secondly, what are the prospects of British industry becoming involved in the two proposals that have been submitted by GE Hitachi and Candu Energy respectively for the use of the plutonium stockpile to generate electricity at Sellafield in Cumbria?
My Lords, on my noble friend’s first question, I will be happy to put into the Library the information that we have at hand. However, the memorandum of understanding is between two private companies, so I will go back to see if they will be happy to have something put in the Library. On my noble friend’s second question, while MOX remains the Government’s preferred option, we are in active talks with a number of providers. I reassure my noble friend that the conversations are ongoing, but we still have a preferred option.
Does the Minister understand that in the context of the proposed new Wylfa B nuclear power station, the likely builders are a Japanese-led consortium led by Hitachi, which has also been looking at building nuclear power stations in Lithuania and possibly other locations on the European mainland? Does she accept that the uncertainty with regard to the future UK membership of the European Union may well mititate against maximising the number of contracts for British companies arising from situations such as that in Wylfa?
My Lords, the fact is that we have a lot of interest from a lot of companies coming to the UK. We should be very proud that there is so much interest. We have an excellent skills base here and we should welcome all investors to our country.
My Lords, is the Minister aware that Sheffield Forgemasters recently completed a large-scale forging for a nuclear reactor to be built in South America? The design was Canadian, but it is not a design that is licensed in the UK. Could the noble Baroness give us an update on whether that Canadian design could be licensed here and, if so, when?
My Lords, it is for operators to decide on the designs and it is for the Government then to approve them, as long as the regulators are satisfied.
My Lords, the Minister has said that 57% will be sourced in the United Kingdom. Will she tell the House how much of that will be sourced in Scotland? If she cannot do that now, could she write to me giving me some indication?
My Lords, the noble Lord knows that I will not be able to answer that at this moment. It would be better for me to take the question away.
My Lords, if that question were asked of the United States Government, the German Government or the French Government, I think there would have been a much more robust defence of jobs and companies. Why will the Government not do more?
My Lords, I have just said to your Lordships’ House that between 29,000 and 41,000 jobs will be made available through what we are doing currently. Of course this is a growing sector and of course we want to see more job growth, but we also want to ensure that we get the right mix of energies in this country and this Government are doing that.
Children: Temporary Accommodation
To ask Her Majesty’s Government what plans they have to ameliorate the impact on children of living in temporary accommodation.
My Lords, the Government are investing £470 million during this spending review period to help prevent and tackle homelessness. This investment has meant that the average time spent in temporary accommodation by those families who are at risk of becoming homeless has reduced from 20 months at the start of 2010 to 13 months as of September this year.
My Lords, I thank the Minister for that reply, which, frankly, I do not believe addresses the seriousness of the current situation. Shelter estimates that this Christmas 80,000 children in Great Britain will wake up homeless. The number of families in bed-and-breakfast accommodation is the highest for nearly 10 years, with some 40% having to stay beyond the legal limit of six weeks, and more than 11,000 homeless households have been based in temporary accommodation in another area. All of this is damaging and disruptive to children’s health, to their education and to family life. I ask the Minister how the costs of all this to families, communities and society are weighed against the benefit restrictions that are fuelling the homelessness crisis.
My Lords, all of us are concerned to protect children and, thankfully, in this country we have a strong homelessness safety net, which is protected in law and ensures that families with children at risk of being homeless always have a roof over their head. As I said in my original Answer to the noble Lord, we have invested £470 million in preventing homelessness. Our effort is very much around preventing and avoiding people being put at risk in the first instance, but we are also working very closely with councils to ensure that they are properly equipped to provide the support that is necessary to anyone who is at risk at any time, never mind whether it is at Christmas or not.
My Lords, given that there is considerable anecdotal evidence of the health and education problems faced by young children in temporary accommodation, especially bed-and-breakfast accommodation, is any data collected to show the exact effect on children, specifically where they have to change GPs? Is there a requirement on local authorities to collect that data, particularly where children are in single-room accommodation for more than the maximum six weeks?
I am grateful to my noble friend. As I have just said, Ministers are working very hard with local authorities to ensure that those families who are housed in bed-and-breakfast accommodation are not housed there for longer than six weeks. Yes, data will be collected and I am sure that I will be able to provide more information to my noble friend, but I emphasise the huge amount of effort that is being made in this area to minimise any of the effects on children.
My Lords, does the Minister really think that bed-and-breakfast accommodation is ever suitable for children?
What would be absolutely and totally unacceptable would be for any child to have no roof whatever over their head. If a child is at serious risk and the only option available to a local authority in an emergency is bed-and-breakfast accommodation, then, as long as it is for the barest minimum time possible, that is preferable to no accommodation whatever. However, clearly it should be for the very minimum amount of time.
My Lords, will the noble Baroness ensure that every effort is made across government to limit the impact that this disruption has on a child’s education? These frequent moves can be very disruptive for the education of children at a critical stage in their lives.
The noble Lord makes an important point, and of course we are working very hard to ensure that there is as little disruption as possible. It is perhaps worth saying to your Lordships that there is clearly great pressure on London versus the rest of the UK. I think that the term we are talking about is “out-of-district placements”, where people are moved from one district to another. However, it is worth noble Lords being aware that information collected by London Councils shows that, of the moves from one district to another, most are within London and only a very small percentage are necessarily outside London.
My Lords, does the Minister recognise that even worse in the order of upsetting these children is when they are moved from one adoptive home to another? This can sometimes go on for years, with a long list of upsets for the children. Does she recognise that this is a real problem that needs attending to because of the misery that it causes?
My noble friend is right. In the efforts that we are making under the heading of prevention, certainly some of the money is used to ensure that families stay together so that as few children as possible are disrupted and moved out of their families to any other kind of home.
Does the Minister agree with local authorities and with me that the number of children in temporary accommodation, and the length of time that they spend there, will both rise as a direct result of the Government’s policies—that is, the bedroom tax?
There is no evidence at this time to suggest that what the noble Baroness asserts is the case. I emphasise the amount of funding that has been specifically set aside both for the areas where rent increases are causing a shortage of affordable housing and for all areas to help people transition and deal with the different welfare reform changes.
Can the Minister give the House an indication of the number of local authorities and families involved in breaching the six-week rule?
This is an area where we have focused quite a lot of effort. We have increased transparency by publishing information about the performance of all authorities in this regard, and we have provided £2 million for the seven councils with the highest numbers of families in bed-and-breakfast accommodation to support them in reducing those numbers. Westminster and Croydon are two examples of local authorities that we have worked with, and they have now reduced to zero the number of families staying in bed-and-breakfast accommodation beyond six weeks.
Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Bill
Committee (2nd Day)
Relevant documents: 5th Report from the Joint Committee on Human Rights, 3rd Report from the Constitution Committee and 12th Report from the Delegated Powers Committee
94: After Clause 7, insert the following new Clause—
“Professional lobbyists taking up employment in Government
(1) Any professional lobbyist taking up a senior position in Government shall—
(a) have their appointment scrutinised by a Committee; and(b) have restrictions placed on their activities as set out in subsection (3).(2) “Senior position in Government” means a position as Senior Civil Servant or their equivalent.
(3) The Minister, after consultation with relevant stakeholders, may make regulations about the activities specified in subsection (1)(b).”
My Lords, we return again to what my colleague has just described as a Bill with a long title but a very short content. The amendment stands in the names of my noble friend Lady Royall and me. Last week, an amendment tabled by my noble friend Lord Rooker, called for the requirement under the Bill to publish meetings with lobbyists to be extended from Ministers of the Crown to the leader of the Opposition in the six months before an election. This is an interesting proposition, as it raises the question of those slightly outside the magic circle of Ministers and Permanent Secretaries, the lobbying of whom should be disclosed to the public.
However, the other side of that coin is the question of whether there are paid lobbyists—paid by industries to promote their interests—who have the ear of government in a particularly close way, but who would not be caught by the register rules, as they are not civil servants and they protest that when they do meet, for example, the Prime Minister, they are speaking not on behalf of those clients who pay them but about very different matters, such as how to beat the Labour Party, or, indeed—the Liberal Democrats should be warned—how to beat the Liberal Democrats. We therefore find that, for the strangest of reasons, meetings that the Prime Minister has with a very well paid lobbyist are not recorded, because, as it so happens, they are only to pore over opinion polls.
Furthermore, despite the Prime Minister’s promise to lead,
“the most transparent government ever”,
we understand that No. 10 has failed to reveal the identity of guests entertained at Chequers. We do not know whether these are lobbyists, mere donors to the party or ordinary friends. But what we do know is that Downing Street has traditionally published an annual list of guests at Chequers, but has not done so since July 2011.
In the context of this Bill, we would be interested to know how many times the lobbyist Lynton Crosby has been at Chequers. What sounds odd is that even after the Bill becomes law, Mr Crosby’s lobbying consultancy would have to disclose any such visits—and therefore publish more than the Prime Minister would have to about such conversations—because Mr Crosby would be defined by the Prime Minister just as a strategic political adviser. But how easy is it to make such distinctions, with the Bill as it stands?
Mr Crosby was hired in November 2012. That month his lobbying firm signed a contract with Philip Morris. In December, he allegedly chaired a meeting at which he advised tobacco companies about plain packaging. In January, he started work for the Conservative Party. In March, a senior Whitehall source told the BBC that Australian-style plain packaging would be introduced here. In July—surprise, surprise—the plan was dropped.
Similar questions have been raised about minimum unit pricing for alcohol. Of course, we have tried to find out the names of Mr Crosby’s clients, which would have had to be disclosed if the Government had produced this Bill rather sooner after their 2010 promise rather than now, as his lobbying company, being a consultancy, would have had to register and disclose its clients. As it is, Mr Shapps said on 17 July, it is a matter for Mr Crosby who his clients within the company are. That is because, as the Minister reiterated to me in a Written Answer on 29 July, Lynton Crosby was not employed by the Government—although, as we know, he was employed by a lobbying company, and by the Conservative Party.
In passing, we might note that although the Minister claims that Part 2 of the Bill is aimed at keeping big money out of politics, the Conservative Party can afford to pay Mr Crosby £500,000 to do his best to keep Mr Cameron in Downing Street. That sounds like big money to me.
Putting that to one side, this example—and there are others—raise two significant questions. One is about a possible conflict of interest caused by a lobbyist working on the Conservative Party leader’s political strategy, but there is also the wider point about the revolving door between government and the lobbying industry. We have just heard about the appointment of a former lobbyist, who also happened to be a Conservative campaigns officer, to oversee public appointments, which sounds to me like double jeopardy. The Civil Service Code states that Whitehall mandarins should be politically independent—a former Conservative worker does not look too independent. The lobbying transparency campaigner, Tamasin Cave, referring to this appointment, said that Ms Wyld had been a lobbyist. She went on to say:
“This job needs someone impartial. It does not bode well”.
Last July, the Commons Political and Constitutional Reform Committee also looked at the issue from the other end: the revolving door between the Civil Service and the private sector. It urged the Government to adopt a joined-up approach to lobbying regulations and to consider changes to the ACOBA alongside lobbying regulations. All of this needs flushing out if the public are really to see who has the ear of government and whether the Bill’s objective of increasing transparency is to be achieved.
Our amendments tackle the issue of lobbyists coming into the system, either as civil servants or employed by a governing party, rather than the outward move, but both should be of concern in any Bill dealing with the openness and transparency of the lobbying industry. I beg to move.
My Lords, I am not an expert on lobbying by any means, but I wonder whether lobbyists employed by opposition parties should also have their position made public. Opposition parties from time to time can form Governments after an election. The work of lobbyists in opposition is just as important as the work of lobbyists for those parties in government. The noble Baroness needs to redraft her amendment.
My Lords, I shall start by welcoming the at least partial support expressed by the Labour Front Bench for Part 1 of the Bill, and indeed the commendable sentiment that has been expressed for strengthening Part 1 further. I am sure that as we proceed, the same sort of constructive spirit for the Bill’s aims will be provided by the Labour Front Bench. The revolving door is an issue all the way across politics, which no Government have yet entirely managed to resolve. We recognise that people moving in and out of different private and public forms of life create some problems, and a number of things are now in place to cope with those who move from private industry into government and back again. It is not a new problem with this Government.
For Amendment 95 to cover all three parties, one would need to add,
“those who are employed in voluntary capacities”,
because my party would love to employ a number of these people but could not conceivably afford to pay them. Indeed, I am aware of a number of people associated with consultant lobbyist companies who have advised my party in the past. Perhaps that is an area that might also be considered.
I am conscious that this is very much about Lynton Crosby and Crosby Textor. In listening to the beginning of the speech of the noble Baroness, I felt that in some ways this was an amendment with a very long text but very little content, if I may slightly adapt what she said when starting out.
I note her comment on guests at Chequers and I will take that back. However, I googled Crosby Textor this morning and I can assure the noble Baroness that it would be caught by the new register, since it has offices in both Sydney and London, and would be forced to register and declare its clients under the new Part 1. That is part of what the Bill is about and Crosby Textor would therefore be entirely covered by it. The question of what happens when a member of a consulting company is employed under a contract part-time—as he is—by one of the political parties in government takes us close to the difficult area of how far political parties in government should be covered by this scheme. I have checked and I can assure the noble Baroness that he has not discussed the tobacco question with the Government. I realise that the tobacco question—I was not so aware of the alcohol question—is very sensitive in government. I merely say that Part 1 of the Bill would catch Crosby Textor. We would then know exactly who its clients were; that is part of the justification of Part 1.
Professional lobbyists taking up employment in government is a rather broader issue. We would of course need to know what sort of a committee would look at this. It would be easier to absorb it into the current arrangements for checking on people who move into government from the outside and, indeed, those who then leave government and go back into these sorts of activities, for which Whitehall already has arrangements. However, I think in some ways these two amendments are in order to make sure that Crosby Textor gets on to the agenda, and possibly into tomorrow’s “Today” programme. Having said that, I say: well played. I invite the noble Baroness to withdraw her amendment.
My Lords, the amendment was not short on content and certainly not on intent. However, before I make one comment to the Minister, I say to the noble Lord, Lord Swinfen, that my passing reference at the beginning was exactly the point that he raised. I did not reiterate what we did last week. It was about the leader of the Opposition in the run-up to an election possibly making the same declarations as we are now asking for from Ministers. I do not have full backing yet from the powers that be in the party, but we came as close as we could to a nod in that direction last week in a way that I think the Minister understands.
The Minister slightly misunderstood the point of the amendment. We know that Crosby Textor would be caught, which is why we were trying to get the information before the Bill became law because it was taking such a long time. The interest was, of course, that the Prime Minister would feel that he did not have to declare that because the person he is meeting at the moment is not a Permanent Secretary and therefore would not be covered in that way. The two really do need to dovetail together.
This is something that we will want to come back to on Report, maybe not exactly in this form. However, it will be important for the aim of the Government, which is to make sure that those who have the ear of the most senior people in government declare theirs. We will need to make sure that we have captured that in a suitable amendment. However, for the moment, I beg leave to withdraw the amendment.
Amendment 94 withdrawn.
Amendment 95 not moved.
Clause 8 agreed.
Clause 9: Notice to supply information
Amendments 96 and 97 not moved.
Clause 9 agreed.
Clauses 10 and 11 agreed.
Clause 12: Offences
Amendments 98 to 106 not moved.
Clause 12 agreed.
Amendment 107 not moved.
Clause 13 agreed.
Clause 14: Civil penalties
Amendment 108 not moved.
Clause 14 agreed.
Clause 15 agreed.
Clause 16: Imposition of penalty
Amendment 109 not moved.
Clause 16 agreed.
Clause 17 agreed.
Clause 18: Civil penalties and criminal proceedings
Amendment 110 not moved.
Clause 18 agreed.
Clauses 19 and 20 agreed.
Clause 21: Guidance
Amendment 111 not moved.
Clause 21 agreed.
Clause 22: Charges
Amendments 112 and 113 not moved.
Clause 22 agreed.
Clause 23: Power to make further provision
Amendment 114 not moved.
Clause 23 agreed.
Clause 24: Regulations
Amendment 114A not moved.
Clause 24 agreed.
Amendment 115 not moved.
Clause 25: Interpretation
Amendments 116 to 118 not moved.
Clause 25 agreed.
My Lords, we gave an indication to the House that the Statement would take place after Amendments 94 and 95. This was for the convenience of, and to give certainty to, all those taking part in the transparency Bill, and to give some certainty to those who wished to be here for the Statement. The rationale behind this is that we have just heard the last of the amendments to Part 1 of the Bill and the House determined last week that Part 2 would not be considered until the middle of December. Therefore, during the rest of the day we will consider Part 3.
I can see that my noble friend Lady Warsi, like others, thought the first amendment would take a little longer. It was commendably briefly dealt with—it was a model for the rest—and at this stage I will have to move that the House adjourn during pleasure to enable others to take their places. As we are in Committee, I will first move that the House resume and then that it adjourn during pleasure, I suggest for 10 minutes.
Iran and Syria
My Lords, with the leave of the House, I shall now repeat a Statement made by my right honourable friend the Foreign Secretary in the other place. The Statement is as follows.
“With permission, I will update the House on developments in the Iran nuclear negotiations and our work to bring together a peace conference on Syria. I returned yesterday from E3+3 negotiations with Iran in Geneva. This was the third round of talks in the past month and it began last Thursday at official level. On Friday and Saturday E3+3 Foreign Ministers joined the Iranian Foreign Minister at the negotiations.
The threat of nuclear proliferation in the Middle East is one of the greatest dangers to the peace and security of the world. That is why we must build momentum behind the Geneva negotiations and why we and Iran must ensure that the opportunity of making progress does not slip away in the coming weeks.
We had two days of intensive negotiations with Iran which finished in the early hours of yesterday morning. These were complex and detailed discussions covering every aspect of Iran’s nuclear programme. Our aim is to produce an interim, first-step agreement with Iran that can then create the confidence and space to negotiate a comprehensive and final settlement.
The talks broke up without reaching that interim agreement because some gaps between the parties remain. Although I cannot go into the details of the discussions while the talks continue, I can say that most of those gaps are now narrow and many others were bridged altogether during the negotiations. As we concluded the negotiations on Saturday night, all six E3+3 Foreign Ministers presented the same united position to Iran which gives an extremely strong foundation for the next round of talks which are to be held on 20 November.
I pay tribute to the noble Baroness, Lady Ashton, and my Foreign Minister colleagues, including Iranian Foreign Minister Zarif. He is a tough but constructive negotiator who displayed a sincere and open approach throughout the talks. He and I took the opportunity to discuss further the bilateral relationship between Britain and Iran, and today both our Governments have formally appointed our new chargés d’affaires. I expect the new UK chargé to make his first visit to Iran this month.
The Government are firmly in favour of reaching an interim agreement with Iran as an essential step towards a comprehensive settlement, but given the extensive nature of Iran’s programme and the history of its concealment, the detailed terms of any agreement matter greatly. An agreement has to be clear and detailed, cover all aspects of Iran’s programme and give assurance to the whole world that the threat of nuclear proliferation in Iran is fully addressed. Such a deal is on the table and there is no doubt in my mind that it can be reached. I am convinced that the agreement we were discussing would be good for the security of the entire world and we will pursue it with energy and persistence.
An interim agreement would involve offering Iran limited, proportionate sanctions relief. In the mean time we will be vigilant and firm in upholding the international sanctions which have played an indispensable part in creating this new opening with Iran. Sanctions are costing the Iranian economy at least $4 billion a month and this cost will be maintained until we reach an agreement.
Until such a moment there is no question of us relaxing the pressure of sanctions in any way. We are determined to take every opportunity to reach a diplomatic settlement to the Iranian nuclear crisis because the alternatives—nuclear proliferation or conflict—could be disastrous for the peace and security of the world, including the stability of the Middle East.
That stability is being severely undermined by the deepening crisis in Syria. Our objectives remain to reach a political settlement to the conflict—thereby also protecting UK national security—to alleviate the desperate humanitarian suffering and to prevent the further use of chemical weapons.
On 22 October I hosted a meeting of the Foreign Ministers of the 11 countries of the core group of the Friends of Syria, as well as the president and the senior leadership of the Syrian National Coalition. We gave our united support to the UN-led Geneva II process, which should establish a transitional governing body with full executive powers, formed by mutual consent. There was unanimous agreement that Assad and his close associates can play no role in a body formed by mutual consent. We also agreed to provide the national coalition with additional political and practical support to give the Geneva conference the best chance of success, and urged the coalition to commit itself to taking part in it.
It has now done that, which I strongly welcome. Last night, its members agreed by consensus at a general assembly to attend the Geneva talks, on the basis that this meant that Assad and those with blood on their hands would have no role in a transition. They also rightly called for humanitarian access and the release of detainees ahead of Geneva II. We continue to push for a date for a peace conference to be agreed, and the UN and Arab League envoy, Lakhdar Brahimi, has reiterated that he is still trying to convene a conference before the end of the year.
In the light of that decision by the coalition, we will provide practical and political support to help them prepare to lead the opposition delegation. I will shortly lay before Parliament a proposal to increase our non-lethal support to the Supreme Military Council of General Idris. This life-saving equipment will take the form of communications, medical and logistics equipment. There can be no peaceful settlement to the conflict in Syria without a strong role for the legitimate, moderate opposition. I also welcome the vote last night by the national coalition to confirm the inclusion of the Kurdish National Council, which adds further to its broad representation of Syrian people.
We are also particularly determined to ensure that the peace talks include a direct role for women’s groups, in accordance with Security Council decisions on women, peace and security. It is vital that women participate fully in the future government and institutions of Syria, as they have an indispensable role to play in rebuilding and reconciling Syrian society. We are ready to work with Mr Brahimi, his team, international NGOs and other countries to make that a reality. We will also work with the UN and its agencies to ensure that we give the women’s groups the support they need to participate effectively. In addition, we are encouraging the Syrian National Coalition to include women members in its delegation.
So far, we have committed more than £20 million to support opposition groups, civil society, human rights defenders and media activists in Syria. This ranges from training and equipping search and rescue teams to providing up to £1 million to help survivors of sexual violence gain access to justice, and we will develop this assistance further.
The humanitarian situation in Syria is one of unimaginable distress and suffering. Well over 100,000 people have died, and 11.5 million people, more than half of Syria's population, are now in desperate need of assistance either inside the country or as refugees in the region. The UN estimates that 2.5 million people are trapped in areas in Syria which aid is not reaching, including an estimated 500,000 men, women and children living under siege conditions. Severe acute malnutrition is emerging among children, and polio has reappeared 14 years after the country was certified free of the disease.
Appalling human rights violations are being committed, including the use of incendiary bombs against civilians, torture, rape, massacres and summary executions, and attacks on hospitals, schools and even aid convoys. The regime has shown that it can facilitate access to chemical weapons inspectors when it wishes, and it could do so for humanitarian relief if it showed a shred of humanity and wished to do so.
We need to address this crisis to save lives and to improve the prospects for the Geneva II talks. On 2 October, we helped to secure a UN Security Council presidential statement which said that humanitarian aid must be able to reach all Syrians. This statement is clearly not being implemented. I spoke last week to Russian Foreign Minister Lavrov, urging his Government to try to persuade the regime to stop blocking the delivery of aid, and we would like to see stronger action in the UN Security Council, including a resolution if necessary.
In the Security Council and through all other avenues available to us, we will press for full humanitarian access and freedom of movement for trapped civilians, the evacuation of civilians from besieged areas, safe passage for medical personnel and convoys, the creation of hubs for the delivery of aid, cross-border assistance and the lifting of bureaucratic burdens imposed by the regime. We will also work with the coalition to improve access to aid in areas under its control.
The UK is contributing £500 million to relief efforts, much of it to assist neighbouring countries, and the international community as a whole has provided $3 billion in funding for this year. But the fact that the existing UN appeal for this year is still nearly $2 billion short underlines just how extreme the humanitarian crisis is, and we are calling on all countries to do more.
The Organisation for the Prohibition of Chemical Weapons has confirmed that the destruction of Syria’s declared chemical weapons production, mixing and filling equipment is now complete. But some warheads and all of the bulk chemical agents and precursors remain, and must be removed from Syria and eliminated. The UK has provided £2.4 million of support for this process, and we will continue to support the mission until Syria’s chemical weapons capability is eradicated.
Diplomatic progress on all of these issues often seems intractable and difficult, but it is vital that diplomacy succeeds, and we will persist undeterred by the frustrations and delays. At the same time we will strongly support the Middle East peace process, which remains central to international peace and security. We do not underestimate the challenges, but firmly believe that if Prime Minister Netanyahu and President Abbas show further bold leadership, a negotiated two-state solution is possible. We are working with European partners to provide practical support to both sides, including bilateral assistance to the institution of a future Palestinian state.
We are likely to face a long period of turbulence in many areas of the Middle East in the coming years, and if we do not succeed in diplomatic solutions in these three crucial conflicts and potential conflicts then the outlook would be dark indeed, for the region and for the peace and security of the world. In the coming weeks we will continue to maintain every possible effort to succeed”.
My Lords, I thank the Minister for repeating the Foreign Secretary’s Statement in another place, and I also thank the Government for advance sight of the Statement itself. On both issues there have been some significant and important recent developments, and we very much welcome the fact that the Foreign Secretary chose to come to Parliament today to update the House.
On Iran, I start by also paying tribute to the efforts of our colleague and former Leader of the House, the noble Baroness, Lady Ashton of Upholland, who, as the Minister said, clearly played a crucial role in driving forward these latest talks. I also pay tribute to the clear commitment shown by all of the P5 plus one leaders in attendance at Geneva. We remain of the view that the UK Government should continue to pursue the twin-track approach of sanctions and diplomacy. President Rouhani campaigned—and, of course, was elected in June this year—on a platform of taking the steps necessary to ease the pressure that sanctions are currently putting on the Iranian economy. We believe that sanctions have been effective, and continue to be important.
Of course, alongside continued sanctions, sustained diplomatic engagement remains key. We welcome the Government’s announcement today that a chargé d’affaires has been appointed, and we wish him well. Yet it is a matter of real regret that, despite historic progress at this weekend’s talks, they did not succeed in producing an agreement. The Minister knows that reports emerged over the weekend describing a French veto which prevented any deal from being signed, and yet this morning Secretary of State Kerry said of the deal,
“the French signed off on it, we signed off on it, and everybody agreed it was a fair proposal. There was unity, but Iran couldn’t take it at that particular moment, they weren't able to accept that particular thing”.
In the light of these differing reports, I wonder whether the Minister would set out what the British Government believe were the key barriers which prevented a deal being reached this weekend. Can she also set out what steps are now being taken to help agree a deal that is likely to secure the support of all parties in the next round of talks? In particular, given the reported disagreements over Iran’s plutonium production capabilities, can she set out whether she expects that stopping or simply delaying the development of Iran’s reactor at Arak will be a component of any future deal?
It is inevitable and understandable that as the terms of a deal begin to emerge, it will become increasingly called into question by those parties which have a higher stake in these important issues. In the light of that, can the Minister set out what assurances have been offered to regional partners, in particular to Israel, which are concerned that the principle of an interim deal will by definition not provide sufficient guarantees that Iran will cease all activity which could contribute to developing a nuclear weapons capacity? Is there any possibility that a deal is in principle achievable and does that mean that there is an urgency to test what is now deliverable in practice? We welcome the commitment, of course, to renewing talks between negotiators on 20 November. Can the Minister set out whether any plans are in place for renewing talks at Foreign Minister level?
I turn now to Syria. As the Minister made really clear in repeating the Statement this afternoon, the humanitarian situation in Syria remains desperate and continues to worsen. Only today, Human Rights Watch published a report documenting the continued use of incendiary weapons in Syria and last week the UN confirmed that 40% of Syrians are now in need of assistance. Clearly, the most effective way to ease the suffering is to end the war itself but while efforts to broker a peace deal continue, it is vital that the international community lives up to its responsibilities to protect those most in need. We on this side welcome the important work that Her Majesty’s Government have been doing but, despite our country’s contribution, the United Nations appeal is still less than half funded. Can the Minister set out what steps the Government will be taking to try to help ensure that other donors now deliver on their unfulfilled pledges?
Since the last time that the Foreign Secretary addressed the other place on this issue, the Organisation for the Prohibition of Chemical Weapons has confirmed that Syria’s declared equipment for producing, mixing and filling chemical weapons has now been destroyed. That country now has until mid-2014 to destroy the remaining stockpiles of chemical weapons. However, given that the OPCW team confirmed that it was not able to visit two out of the 23 chemical weapons sites in Syria because they were too dangerous, can the Minister say what assurances are being sought for the protection of OPCW personnel who are due to carry out their further significant work in conflict zones across the country?
The real breakthrough needed that would improve the situation on the ground is, of course, a diplomatic one. That is why we welcome the recent focus that the international community has shown on trying to secure a date for the next round of the Geneva talks. It is indeed welcome that the SNC has today voted to accept the invitation to attend Geneva 2 as the representatives of the Syrian opposition. However, as its acceptance is conditional on the granting of humanitarian corridors by the Syrian regime, can the Minister set out the Government’s present assessment of the likelihood of that condition being met?
In the light of the Foreign Secretary’s recent discussions with representatives of the Iranian regime, can the Minister set out her assessment of the likelihood of Iran actually taking part in or offering its support for the peace conference? We support what the Statement said about the importance of women’s groups being represented in peace talks too. Our view is that Geneva II still offers the best prospect for securing a more stable future for the people of Syria and that the Government should be focused on ensuring that in the weeks ahead unstinting efforts will continue to be made to try to bring about this long-delayed but much needed conference.
My Lords, I thank the Benches opposite and the noble Lord for his support for the work that has been done so far. I also pay tribute to the noble Baroness, Lady Ashton, for the way in which she has led what are incredibly difficult negotiations. These are tough negotiations, with a long history, but we have narrowed the gaps where there were disagreements.
Talks in Geneva have made a lot of progress. There is no doubt that the parties are now much closer together. If a year ago we had tried to predict where we would be it would not be where we are now. Two months ago I could not have anticipated that so much progress could have been made. E3+3 has reached a consensus and we are firm that our goal for the process should be an agreement that offers real assurance on all our non-proliferation concerns, and we are confident that a deal is achievable.
The noble Lord spoke specifically about Arak. Iran has made it clear that it wants to have a right to enrich and wants that right recognised. At this stage we do not recognise such a right, but we have repeatedly said that once Iran addresses the international community’s concerns, its nuclear programme will be treated in the same manner as that of any other non-nuclear weapons state that is party to the NPT. This is the position of the E3+3. I shall not be drawn into the detail of the discussions on Arak at this stage. We want the negotiations to reap results and have agreed with Iran that proceedings will remain confidential. We are clear that there are a number of areas where gaps between the positions of the parties remain, but as I have said these gaps are now narrower and we need to maintain the momentum for negotiations. Iran needs to reflect seriously on its position before the next round of talks later this month.
We are also clear that we will agree a deal only if it offers us real assurance regarding the whole of Iran’s nuclear programme. A first-step deal will create the space and time for negotiations on a comprehensive solution, but it is in all our interests to reach a diplomatic solution to the Iranian nuclear issue and vital now to maintain that momentum. Partners in the region understand that this is going to be part of a comprehensive agreement in due course.
In relation to Syria, the noble Lord is right. There is still a severe shortfall in humanitarian access and support. We pushed successfully for further progress at the G20 and at the UN General Assembly, where more than $1 billion of new funding was pledged by the international community. This was a step in the right direction, but we accept that more needs to be done. The presidential statement has been helpful to some extent in supporting this progress, but the noble Lord may be aware that there is a further donor conference taking place in January of next year. The UN has announced that that pledging conference will be hosted by Kuwait around mid-January—on the 15th and 16th, we think—and the UK will push for it to raise significant finance to meet urgent humanitarian needs for Syria and the surrounding region. We will continue to lobby our donor partners to put forward high and ambitious pledges to support the Syrian people, but I accept that we are constantly playing catch-up in a region with probably the largest humanitarian disaster that the world has seen.
In relation to the OPCW and its inspectors in Syria, I had an opportunity to discuss this matter in some detail with my noble friend Lady Williams, who is not in her place. She raised concerns with me about protection. I assure noble Lords that we take the protection of these inspectors incredibly seriously, and we have seen real support and assistance from the Syrian regime for the work that was set out for the OPCW. Syria has declared a formal destruction plan and the OPCW is analysing the documentation and seeking clarification where necessary. We feel that detailed technical analysis will be required before any conclusions can be reached about whether it will complete the work that the inspectors are doing.
I hope that I have addressed most of the concerns that were raised by the noble Lord, but if I have not, I shall follow up in writing.
I, too, thank the senior Minister for repeating the Statement in such a timely manner. Does she agree that Iran is more relevant to securing international peace and security than it has been for some time? This is a pivotal moment in the history of the Middle East. Were a deal secured on the NPT, it would give us an opportunity to restart discussions on a nuclear-free Middle East. The Minister mentioned Syria, and Iran is key to a negotiated settlement there. Is she able to tell the House what discussions the Government are having with the United States? We hear very disturbing reports about how the Senate is preparing to have tougher sanctions against Iran here and now, in the next 10 days, before we can agree to the next round of discussions, and that Congress and the Senate are prepared to continue to obstruct a deal. In that case, should an obstruction of that kind occur, are there any plans for European Union countries to move away from UN sanctions into some other method of helping Iran, should a deal be available?
My noble friend makes an important point. We must remember that it is because sanctions were imposed and were biting that we have reached this stage. Sanctions have brought Iran to the negotiating table in a serious way, so it is important that sanctions remain until we reach agreement. I hear what the noble Baroness says about the politics of what is happening in the US, but we feel that at this stage we need to push to reach agreement, at least on first steps, before any substantive discussions can take place in relation to sanctions.
I accept that Iran is an important and vital issue on which we must move forward, not just in the light of the nuclear issue but because of its role in Syria. The noble Lord, Lord Bach, asked about the role of Iran in any further discussions at Geneva II, and I think I did not answer. No decision has been made at this stage about the participation of Iran in Geneva II. The UN Security Council has agreed that the Geneva II conference should implement the Geneva communiqué. At this stage, Iran has not publicly endorsed the Geneva communiqué or made it clear that it supports the purpose of Geneva II; it is hard to see how it can play a constructive role without endorsing that communiqué. We continue to have concern about fighters, including the IRGC Quds force, which continue to operate within Syria.
My Lords, like everyone else in this House, I warmly welcome the fact that the negotiations gap between the two parties seems to have narrowed very considerably. I shall make two points to the Minister and ask her to regard them as chilling realities. First, for 20 years, Iran has cheated time and again over all negotiations relating to nuclear development—as far Arak is concerned, there is no heavy water facility and, with regard to Natanz, no question of enriching uranium—up to the point when it would have been impossible and childish to have maintained such denial.
Secondly, the main thrust of negotiations in relation to Iran, with all that has been very properly said about human rights, is to see to it that it does not become a nuclear power. If it becomes a nuclear power, the Middle East will be jeopardised with a ticking bomb under it. That must be avoided at all costs.
I take on board what the noble Lord said. Exactly these kinds of concerns are uppermost in our minds when we are in negotiations. I think that I can give the noble Lord some comfort by saying that we feel that the new Iranian regime, following the election of President Rouhani and the appointment of the new Iranian negotiating team led by Foreign Minister Zarif, has taken a constructive approach. We believe that Mr Zarif wants to resolve this problem and that he is out to do a deal. We feel that Iran is under serious political and economic pressure and that it recognises that it is in its interest to reach an agreement with the E3+3. I hope that we will be able to reach that point soon, but we take part in these negotiations with our eyes wide open, and take fully into account the context in which we are operating and have been operating for a number of years.
My Lords, is there not a much more difficult problem about Iran? There are effectively two Governments there. The Minister is talking about discussions taking place under the Rouhani leadership, but back in Tehran, there is a religious leadership that has already tried to rein in the new Government back, in respect of the steps that they have taken towards rapprochement with the rest of the world. What confidence can the Minister—and, indeed, negotiators—have that any eventual settlement will not simply be rejected by the religious leadership in Iran, as it has already tried to distance itself from some of what is going on?
Secondly, I have a question about Syria. In a former life, I was the envoy to Bashar al-Assad and I had to deal with a lot of the people around him who were deeply unpleasant, very sinister and, in many ways, far more unyielding than Bashar al-Assad. Can the Minister give us an assurance that none of these people will be left to wield any power when eventually we see the end of this regime? There have been suggestions that the vice-president would have a role; the vice-president whom I met was certainly not a man I would want to see having any power in Syria in future.
The noble Baroness comes to these matters with great experience and expertise. She has made valid points about the different seats of power within Iran. At the moment, we feel that the Foreign Minister and President Rouhani have a mandate under which they are operating. We have had a number of meetings with them; the Foreign Secretary has met the Foreign Minister on three separate occasions, and we genuinely feel that progress was recently made in Geneva. The offer on the table now being considered by the Iranians is something that they will have to come back to discuss; it may well be that on 20 November we will be much clearer about how committed all aspects of the Iranian seats of power are in taking this matter forward. At this stage, however, we feel that progress has been made and that there is an acceptance that this is in Iran’s interests.
In relation to Syria, the noble Baroness made an important point. It is why the statement from the national coalition issued only yesterday said clearly that the transitional council must not include al-Assad or others who have blood on their hands. I think those are exactly the kind of individuals to whom the noble Baroness refers.
My Lords, it is of course right that we should negotiate with Iran, with a clear eye and a suspicious mind. Surely the point of the sanctions in the first place is to get the Iranians to the negotiating table so that we can find some diplomatic solution to their nuclear programme. We should, therefore, be enthusiastic about the process, while being very suspicious about the detail. With that in mind, the Minister has emphasised the united front that our negotiators put up to Iran. That is not the perception one gains from the media. Does the Minister agree that that is very unhelpful, particularly as regards people such as the Israelis and the US Congress, who are already suspicious of the process, and that unhelpful and unguarded remarks made by people, such as those made by the French Foreign Minister to journalists, are likely to damage our cause rather than help it?
The noble and gallant Lord will be aware that a number of tracks—sometimes bilateral and at other times multilateral—usually take place before these negotiations are finally concluded. It was important that the E3+3 came to the same place and that they presented a united front. I assure the noble and gallant Lord that that offer is now clear and that the E3+3 are all behind that united position. On sanctions, we are clear that Iran needs to take concrete steps which give assurance and build trust; by that I mean not words but actions. Once we see that change in actions we will be ready to act proportionately and respond.
My Lords, on Palestine-Israel, no doubt the noble Baroness will have listened to the important speech made by Secretary Kerry, which warned of a possible future intifada. Is it correct that because of the impasse, the Palestinians are now demanding that the Americans take the lead, put their own proposals on the table and press for them? On Syria, the noble Baroness spoke of the legitimate moderate opposition. However, is not the bulk of the fighting, and certainly of the effective fighting, done by jihadists? How representative, in her view, are the people who now speak for the opposition? Is it at all realistic to seek to have peace talks without Iran, a key regional player, being present?
On the Middle East peace process, I have stood at this Dispatch Box on a number of occasions over the past 12 months and have said that this year is in many ways a definitive year for real progress to be made. I am heartened by the incredible amount of personal time and energy that Secretary Kerry has put into moving this forward. I think we all accept that the Middle East peace process is an intrinsic element of resolving the tensions in the region. At this stage, we continue to support the initiative led by Secretary Kerry in any way we can and are asked to. The noble Lord makes an important point on the opposition. Of course, I have read many papers and briefings on the make-up of the opposition. There is the national coalition, the armed section—which I think is called the SNC, although I am trying desperately to think of what that stands for.
The Syrian National Council.
Thank you. We are aware of a number of groups who have openly distanced themselves from the national coalition and the Syrian National Council—for example, al-Qaeda and affiliated groups. However, we are confident that the national coalition continues to represent a broad perspective of Syrian opinion and that that is the view of the Syrian people. We find that many of the armed groups that operate within Syria are not part of the national coalition or necessarily representative of the Syrian people, but have taken advantage of the situation that has arisen in that country.
Will the Minister comment on the report this morning that an agreement has been reached between the International Atomic Energy Agency and the Iranian authorities in Tehran on inspection of the Arak plutonium site? If that is the case, would it facilitate the negotiations and discussions on 20 November?
My Lords, I am not familiar with the details of that report. I was aware that a round of talks was taking place. Perhaps I can write to the noble Lord with further details.
My Lords, I apologise to the noble Baroness for not being here at the start of the Statement. I listened to her colleague deliver the same Statement in another place so I am familiar with it.
It seems to me that it is impossible to exaggerate the gravity of the situation faced in that whole region. The chances of Syria surviving as a single country, under the present pressures that it faces and the danger that it may split into three separate countries or separate organisations, seem to be very slim indeed. Against that background, it seems to me to be hugely important that the momentum of this effort to try to find peace through diplomacy is vital. I welcome the announcement about the chargé. The sooner he goes to Iran and establishes a base in Tehran the better.
The other key element in this surely is Russia. In this situation one can see a whole region in danger of collapsing into total confusion. Everyone has an interest in seeing a better outcome. I very much hope that we will press on, notwithstanding the comments, which I strongly support, that there is clear evidence that hardliners in Tehran, the Israeli Government, with their present attitude, and elements in Congress will do everything that they can to obstruct it.
I can give my noble friend confidence by saying that the chargé whom we have appointed is someone who has served in Tehran before; in fact he was the deputy ambassador there. Indeed, when I spoke to him this morning, he was brushing up on his Farsi. He knows the country well, is incredibly well equipped and is the right man for the job. Of course, it is an important role and we hope that he will visit the country before the end of the month.
The Russians have been working closely with my right honourable friend the Foreign Secretary, in relation to Syria and Iran as part of the E3+3. They have indeed taken a leading role in relation to the destruction of chemical weapons. It is a strong relationship; it is a relationship which we know we need to continue to work on because their role is crucial to achieving a settlement.
My Lords, in the Statement read out by the noble Baroness it was clear that there are three conflicts: the negotiations with Iran, the Syrian conflict and the Israel-Palestine negotiations. Is there scope for expanding the Geneva process to be much more inclusive and to take these various things together because they are interconnected? The Minister mentioned, for example, that the Syrian National Coalition has recognised the Kurdish Syrian party and I am sure that the Turkish Kurdish party and the Iraqi Kurds are also trying to get together. We might be at a crucial juncture in the Middle East and it might be helpful to have a much more general Geneva conference, expanded to include all these problems together.
The noble Lord makes an important point but I think that he will probably accept that although each of these situations has overlapping issues, they are uniquely complex in their own ways. To try to bring the various issues together might make it too difficult to resolve any of them.
Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Bill
Committee (2nd Day) (Continued)
Clause 36: Duty to provide membership audit certificate
118A: Clause 36, page 39, line 1, leave out “in relation to each reporting period” and insert “if—
(a) a formal complaint is received by the Certification Officer that would result in the Certification Officer requiring a membership audit in relation to the reporting period when the complaint was verified, and(b) the Certification Officer determined that a certificate was required.”
My Lords, I shall speak also to Amendments 118B and 118D standing in my name and that of my noble friend Lord Stevenson, and shall also oppose the Question that Clause 36 stand part of the Bill. I will also speak in support of the amendments tabled by my noble friends Lord Whitty and Lord Lea of Crondall.
We are in some difficulty in dealing with Part 3. We had assumed that this was going to come up at around the end of the month because that was the original schedule. However, with the pause to Part 2 agreed here a week ago, it has all been rushed forward. Part 3 has been jinxed from the start. It was a very late addition to the Government’s programme and to the Bill. The short consultation period was in August, which is not a particularly busy month for many of us, and now, given the attention that has been given so far to Part 2, we are dealing with Part 3 on the run in this House before many people are remotely aware of its significance or of what it is about. However, our contention on this side is that this part of the Bill is very important. We hope that today we will at least be able to raise awareness of the issues at stake and appeal to fair-minded Members on all sides of the Committee for their support in looking in detail at what this part involves.
We have raised our opposition to the clause standing part as part of an attempt to persuade the Government to think again and to think further about what resembles a vindictive attempt to load on to trade unions a great new dollop of red tape—a new layer of bureaucracy that is unnecessary by any objective or fair-minded standard. Of course unions should keep accurate records. Indeed, they are already required to do so under the Trade Union and Labour Relations Act. They are required to make detailed returns on an annual basis to the certification officer. They are required to have independent scrutineers in all elections, and invariably those scrutineers check the membership registers. The certification officer—the union regulator—has the power to order a rerun if there is a complaint of sufficient importance.
I note from yesterday’s press that there are allegations by a defeated candidate about a recent election in Unite. By the way, that election was supervised by Electoral Reform Services—the old Electoral Reform Society. I also understand from the press that a complaint has now been made to the certification officer. If it is upheld, the certification officer will have appropriate powers, if necessary, to order a rerun. He does not need new powers as foreseen in the Bill. As far as I know, the certification officer has not asked for any new powers. He does not feel that he is lacking any ability to deal with issues that are referred to him. Therefore, I do not believe that there is any basis for heaping extra requirements on to unions. Likewise, industrial action ballots can be, and occasionally are, challenged by employers on the grounds either that inappropriate people are balloted or that people are missed out of a ballot. Therefore, unions have every incentive to keep accurate records.
I should like to know from the Government why they are doing this. What is the motivation for it? Why are they incurring considerable expense on all sides—unions, employers, the Government and the taxpayer—for this particular non-event? There is no rationale for this provision, which will involve extra bureaucracy and extra costs. This Government were anti-red tape when they were on the other side of the House, but they are obviously making an exception for trade unions.
The cry has gone up that we need more assurance and more confidence. I see the noble Lord, Lord Tyler, in his place. He suggested, among other things, that this was necessary because a union has a political role. Lots of other organisations have political roles, but are their membership rolls to be supervised by a public official? Are the political parties going to be thrown into the mix? Do we need some assurance about how many members they have? That would be very interesting for some of us to read. No, it is unions, again, that are being scapegoated and picked out to be given a kick on this issue.
By the way, only a small minority of unions have anything directly to do with the Labour Party, yet many, such as the Royal College of Nursing—which is, I may say, a good way off the Labour Party—will be affected by this part of the Bill. It is a blunderbuss, aimed at just one section of society that plays a political role. If I were paranoid, I would say that we were being persecuted.
The stated intended effect of the Bill is to ensure that voting papers and other communications reach union members, and so give greater confidence that members have the chance to participate in union affairs. There will be a new statutory duty to provide the certification officer with an annual membership audit certificate that provides an opinion on the union register, with the larger unions having to appoint an independent “assurer”—I have not come across that interesting title before—and a duty for the certification officer to appoint inspectors to investigate and make orders, and for those officials to issue declarations and enforcement orders for non-compliance. Heavy-handed, or what?
That is tough administration. Again, if unions were getting a litany of great numbers of complaints, I might be able to understand the reason for it. But there is no such evidence. As I and others pointed out at Second Reading, there is absolutely no practical reason for these measures to be in the Bill.
Are union membership records defective? They are not perfect; I would be the first to acknowledge that. How can they be? Unions collect their money in one of three ways. The traditional way was through regular cash collections by voluntary officials such as branch secretaries, shop stewards and others. That is very difficult in some circumstances—in construction, for example, with a fluid workforce and many people on very short-term contracts. It is difficult in many other places, too, as anybody who has ever collected money for a political party or a voluntary organisation knows. The record keeping could sometimes slip, depending on the efficiency of the individual collector; I have no doubt about that.
The second way to collect subs is by the so-called check-off method, using deductions at source by an employer, for which the union usually pays the employer a handling charge. In one of my other roles, helping to secure auto-enrolment for pensions, we are having a lot of trouble with the quality of employer payrolls. With some of them, as many as one in four workers is not properly reflected on the payroll. I know that unions and employers together have big problems handling the check-off. In certain sectors, such as retail, there is a high turnover of labour: a third of the members of USDAW, the main retail union, have to be replaced each year just for membership numbers to stand still. Keeping those records up to date is a huge administrative job. The employer is probably paying a quarter in arrears anyway, so for a significant part of the quarter a union may be some way out with its membership register. The third method is by direct debit and standing order. They tend to be more accurate, so I shall not dwell on those.
Where are the problems with all this? It is not perfect, I agree. If I were the assurer I would not quite know how to deal with some of the sectors where unions have to collect their money and organise their members. Between 2000 and 2004, a total of six complaints were received by the certification officer, five of which were dismissed—and even for the sixth one he did not issue a declaration. He just expressed an opinion that some things could have been done differently. There had been no complaints in respect of a vast majority of unions. In fact, I did not know about another one at all until I read the Sunday Times yesterday.
I stress that there is no real problem. This is a remedy in search of a problem. I would like to think that many noble Lords on the other side of the House would be embarrassed about this waste of effort and time. The cost to unions of this part of the Bill on the Government’s own estimate is about £460,000. By the way, that is an underestimate, which fails to take into account the necessary changes to rule books. Some unions have to have rules revision conferences and some have them only every five years or so. It does not reflect the continuing cost of having the assurer and annual audit done year after year. It is not only unions that will have to pay. Business will have to pay and the estimate is about £400,000, £100,000 of which will end up on the Government’s budget, and therefore on all our budgets as taxpayers.
Some noble Lords will no doubt be thinking, “As a former general-secretary of the TUC, he would say that, wouldn’t he? It’s predictable stuff from the TUC”. But they do not need to take my word for it on this occasion. They need only glance at the report of the Regulatory Policy Committee, a business-dominated government committee attached to the Department for Business, Innovation and Skills whose sole purpose is to curb red tape. I emphasise that the committee is composed largely of business representatives from the chambers of commerce, the Institute of Directors, and others. It has issued a rare red card to the Government on this matter—a stop notice in effect on Part 3. Unfortunately, this was not available at Second Reading. The House as a whole needs to be alerted immediately to the report, and I hope that it will be prepared to look afresh at this proposed legislation.
Some noble Lords may not care too much for trade unions; they may think that they deserve all the flak they get. But I ask the fair-minded to take a look at the report. I shall quote some points. It says that the impact assessment of the Bill,
“needs to provide a more detailed assessment of all likely costs to trade unions … supported by further evidence that was gathered … It is unclear how accurate and up-to-date a membership register will have to be for a union to be considered ‘compliant’ … or what process of investigation would be undertaken by an independent qualified assurer, or how rigorous that process would be”.
It also refers to the recurring costs. The committee illustrates that it was only after the Bill was published that the short August consultation period was started. It highlights the failure to follow appropriate better regulation processes—hence the issue of that very rare red card.
Our case today is not just about red tape. Individuals sometimes have to be careful who knows they are in a union. Countries that require a public official to know who is or is not in a union tend to be despotic tyrannies. Although I do not belabour the Government with that charge, information on union membership is very sensitive. Blacklists do exist. Eight major construction companies have recently admitted that and more than 2,000 workers are in line with legal cases against some of the biggest household names in British construction. There are worries about membership information finding its way to the unscrupulous end of employers. Worries have been expressed by parliamentary committees about breaching the confidentiality of union membership records. There are concerns, too, that Part 3, despite what is in the Bill, is not compatible with Articles 8 and 11 of the European Convention on Human Rights or with certain obligations concerning the International Labour Organisation.
The Political and Constitutional Reform Committee has asked the Government to address these concerns during the course of proceedings on the Bill. There is plenty of criticism from around the House of this part of the Bill. Part 3 in fact confers powers on state officials in relation to voluntary organisations that seem odd in a liberal democracy—organisations which, under these international obligations, are protected from too much state interference. Only if there is a proportionate need, is the theme running through them, should curbs be brought in. I have not seen anybody yet demonstrate that there is any sort of proportionate need. Therefore, in the period between now and Report stage, we will be trying to raise general awareness about Part 3 and its rather vindictive, malicious nature. The Government did listen to reason on Part 2 and I hope that they will listen again on Part 3 in this intervening period. We are looking for support for our contention that Clause 36, a keystone clause in Part 3, should not stand part of the Bill.
I hope too that there will be support for the other amendment’s. I refer briefly to Amendment 118A, which would adjust the reporting duties so that it would be only once a complaint was received that the process laid out in the Bill would have to kick off. Amendment 118B would introduce an appeals mechanism for unions to say, “Come on, this is ridiculous”. I leave the merits of Amendment 118C in the capable hands of my noble friends Lord Whitty and Lord Lea. On Amendment 118D, I simply point out that the amendment is part of a series that seeks to make the Bill less onerous, complicated and costly to unions and employers. It aims to probe whether the Government are really hell-bent on a Bill based on anti-union prejudice or are open to constructive ideas. It seeks to do this by deleting the requirement on a union in relation to these reporting periods—a duty to submit the membership audit certificate in relation to each reporting period—which would be at least one year. We seek to alter this to require a union to submit a membership audit certificate if the section is invoked.
At the moment the Government resemble Don Quixote, tilting by reflex at the trade union windmill, dreaming up remedies before they have identified the problems, and prodding unions with a stick, like little Albert in Stanley Holloway’s piece, to try and incite some reaction and make a rather shabby political point. Polishing up union-bashing credentials seems to be a rite of passage for some on the other side of the House. Just remember this. A recent poll has shown that 78% of the population believe that,
“trade unions are essential to protect workers’ interests”.
The Government therefore should think again before Report. They should start to act in a fair-minded way and not be blinded by ill-informed prejudice. I beg to move.
I rise to support these amendments. This section of the Bill is yet more evidence of the opposition of the Government to the interests and desires of ordinary working people—to their need to organise to represent their legitimate interests at a time when employment rights are constantly under government attack. Now we have this attempted legislation, which is a direct attack on unions and their ability to represent their members and provide a service to them. There is already legislation in place as we have heard, in the 1992 Act, which requires unions to maintain a register of members with a certification officer in charge of implementation. As my noble friend has pointed out, there have been hardly any complaints under that legislation and only one with any substance requiring further examination. The Government have not produced any evidence to support the amending legislation they are now proposing.
Government spokespeople often stress the importance of voluntary organisations, but unions are among the largest voluntary organisations in the country. Although the media, most of which seek to demonise unions, refer only to union bosses, most local and workplace work is done by willing volunteers. Yet unions are the only voluntary organisations to have this kind of internal bureaucracy imposed upon them and at their expense. The CBI, employers’ organisations, organisations representing bankers and the fiscal industries do not have this; only unions are to have this additional expensive official, an allegedly independent person, who is not voted for by them but is imposed upon their internal administration.
What of the privacy of ordinary members? What of their confidentiality? It is clear that the Government are intent on making things much more difficult for a union affiliated to the Labour Party. However, not all of them are. Most are affiliated only after a ballot of those who pay the political levy, which is surely a matter for union members themselves. The TUC has made substantial criticism of the Bill, which it regards as an attack upon democracy. It believes that it would make organising a conference in advance of the general election, even its own congress in 2014, a criminal offence, because it would be in advance of an election.
The campaigning organisation, Liberty, has also opposed this section of the Bill, believing it to be a breach of Article 11 of the European employment rights legislation. The Government, of course, disagree. I regard this section as undemocratic and a further attack on the employment rights of ordinary people. The Government pretend that it is not. However, to weaken the ability of the unions to adequately do the job for which their members belong weakens those members. Strong unions mean better pay and conditions, which is one of the reasons why millionaires do not like them much.
We in this House should not be misled by media misrepresentation of unions and should recognise the contribution that they make to the support and welfare of ordinary working people. This section of the Bill should therefore be opposed. I fully support what my noble friend said in his introduction to this section.
My Lords, I declare an interest in that I have been a member of the GMB for 40 years this year and was a member of other unions prior to that. I therefore have an axe to grind—not a pecuniary one—and I share that interest with millions of our fellow citizens and with many who are not in trade unions but who, nevertheless, benefit from the way in which trade unions operate in the market.
My Amendment 118C seeks to delete from the clause the reference to this peculiar new invention of an assessor. The Government have seen fit to invent a whole new profession and office for reasons which, as my noble friend Lord Monks said, are not entirely clear. The role of the assessor is dealt with in more detail in Clause 37, and I will return to make more detailed remarks in that respect. The central point is why the Government think that they need to invent a relatively costly new bureaucratic structure when they already have the powers in the role of the certification officer, who can deal with any complaint received, intervene and censure a union if inadequate documentation is provided. As my noble friend has said, there are already substantial penalties available to certification officers if ever one of the few complaints they receive is upheld. In this section of the 1992 Act, there is also the possibility for individuals to complain, not only to the certification officer but to the courts, about the failure of trade unions to maintain proper records and many other provisions of that Act.
So why is a new structure being proposed? As my noble friend Lord Monks has said, there are problems in maintaining a register of trade unions with names and addresses and accurate records. By and large, most of the population moves every four years, and the impact assessment recognises this. People change their address every four years and tend to move job slightly more frequently than that. In some cases, they change the way in which they pay their union dues, or the name of the company for which they work changes. At any given point, it is difficult to maintain a 100% accurate register, but the Act rightly says,
“so far as is reasonably practicable”.
That is the basis on which the certification officer makes a judgment.
It is not clear in this Bill whether the Government intend to invoke more stringent principles of how to decide whether or not it is an accurate register. If they are, it is not in the Bill. Is the assessor, or whoever advises them, to develop new codes? If so, the House should be told before we proceed. I will return to the role of the assessor, which appears in the next clause.
I also strongly support the aim of the amendment of my noble friends Lord Monks and Lord Stevenson to delete this clause and this whole part of the Bill. We have looked at the impact assessment, which estimates the costs to unions, the Government and employers. For unions, it is assessed at around £400,000. I have had representations from all sorts of unions—my own, the National Union of Teachers, which is not affiliated to this party, and the Royal College of Nursing, to which my noble friend has referred and which is not affiliated either to the TUC or to the party. These indicate clearly that the cost of implementing these provisions and initiating the changes in procedure and rules that is required would be substantially more than that.
Even more interesting is that only £140,000 is allocated to additional costs to the Government, whereas if they were really trying to enforce this, they should give the certification officer significantly more powers. It is arguable that under the present rules the certification officer may need more resources, but that is not what this Bill is about. It is about an entirely new approach to this area. The even more interesting part of the impact assessment is that the benefit at one point is described as nil. That is a pretty telling internal report on a proposal from Ministers: at a cost of £400,000, which I think will be rather larger, plus £100,000 or so to the Government, the benefit is nil.
My noble friend Lord Monks has already cited the Regulatory Policy Committee, which basically says that this is one of the daftest proposals that has ever come before it, and there is no justification for it. Even the Government, who have been scraping around for supporters of this Bill during a rushed consultation period over the holiday month, could not get more than lukewarm support from the CBI, which said that it would not be its first priority. Where are the Government coming from on this? The benefit to restating and providing a bureaucratic infrastructure to enforce the requirement of unions to keep membership records effectively is not justified in anything the Government have so far said about this, either in the impact assessment or in speeches in the House of Commons, which was of course very late in the proceedings.
That has naturally given rise to various levels of paranoia from the trade union movement. I should say on behalf of me and my colleagues: “Just because you’re paranoid doesn’t mean they’re not out to get you”. There are some hints in the impact assessment that they may really be talking about strike ballots, which are not relevant, as my noble friend Lord Monks said. The issue in a strike ballot is whether the people who are balloted are those, and all those, in a particular bargaining unit. That depends on the definition by the union and the employer; it does not depend on the totality of any union’s register of members and their addresses. An alternative suggestion was that the proposal relates to internal elections within unions because the Government, in some way or other, do not like the people who are being elected. Occasionally the Labour Party leadership does not like them, either. The fact of the matter is that if something is wrong with an election, the defeated candidate can complain to the certification officer, as happened in a recent case to which my noble friend referred. If an officer finds in favour of the complainant, then the election is run again. What additional powers do the Government see coming out of these changes that would affect that situation?
My final reason is perhaps the most sinister. I see that the noble Lord, Lord Tyler, has left the Chamber, even though he made remarks at Second Reading that suggested that the Liberal Democrats in particular were on about trade union political funds, which, of course, are dealt with in entirely different legislation. I agree that decent membership records are required but political funds are not dealt with in this part of the Bill. Even if the Government were out to bankrupt the Labour Party, this proposal would not do so. I therefore have to say to Ministers that if those more Machiavellian motives were their real motives, they have got it wrong. If, however, the proposals were a reasonable and fair-minded attempt simply to improve the situation, then again they have got it wrong because the present powers are sufficient.
The Government are introducing something which, if they had imposed it on any other entity within our civic society, would have been regarded as otiose or even oppressive. We shall come later to the oppressive aspects of these proposals. We have yet to hear from the Minister today on this; we certainly did not hear from him at Second Reading. Unless he can give us a more coherent and persuasive argument as to why these matters need to be addressed and why this new structure has to be imposed, this clause—indeed, this whole section of the Bill—would be best left out and we should not proceed further with it.
That would be a drastic measure but there is time in which the Government could think up some new reasons as to why they are making these proposals. There is a pause in relation to Part 2: if the Government use that time to engage in a proper consultation, they may conclude that these proposals are unnecessary, or they may be able to concoct more convincing reasons as to why they are necessary. However, for the moment, as it stands, the Bill is nonsensical and unnecessary, and imposes a cost on trade unions and their members that does not deliver any benefit, as the Government’s impact assessment suggests. That is good reason enough for them at least to pause but possibly abandon this part of the Bill.
My Lords, I should like to pick up from where my noble friend Lord Whitty left off. The more that the British public start to understand the Kafkaesque nature of the Bill—Part 3 in particular—the more, during the pause to which my noble friend referred, people around the House, not just on these Benches, will recognise that it is an outrageous measure.
I take this opportunity to list the very onerous administrative burdens that, as my noble friend Lord Monks was saying, are going to be placed in addition to those that exist at the moment. It is a rather formidable list. This is what the Bill would do in addition to what is done at the moment: it would require unions to submit to the certification officer a membership audit certificate. Secondly, it would require unions with more than 10,000 members to appoint a qualified, independent person to act as an assurer who will provide the union membership audit certificate and carry out such inquiries as they consider necessary to provide the certificate.
Thirdly, the Bill will give new, substantial investigatory powers to the certification officer who will be entitled to: require the production of relevant documents or authorise another person to do so; require explanations of those documents from their producer or any person who is or has been an official of the union, including assurers; and appoint an inspector to investigate compliance with the duty to maintain a register of names and addresses of members if circumstances suggest that the union has failed to comply with that duty or the duties relating to the membership audit certificate.
Lastly, the Bill will give new enforcement powers to the certification officer, who would be able to make a declaration of non-compliance with duties relating to the register and subsequently to issue an enforcement order that would impose requirements to take steps to remedy the failure. Then, of course, there will be penalties at the end of that.
Where would one normally go in a democracy to find out an evaluation of such a lengthy list of new requirements? As my noble friend Lord Monks has said, it is not exactly a bonfire of red tape. One would go to a Select Committee or a Standing Committee. I think there is scope here for a Select Committee but there are different ways in which you can skin this cat during the pause. One of them is the report from the House of Commons Political and Constitutional Reform Committee which says that this Bill has requirements which are disproportionate to anything that the Bill wishes to achieve. It states that,
“other than in cases of emergency, all Bills should, as standard practice, go through pre-legislative scrutiny in Parliament”.
We are touching on a really serious feature of the way this has been done.
To me, the most significant part of the Regulatory Policy Committee’s damning report is the way it puts the finger on Ministers who, for political reasons, make use of Whitehall expertise so that the business department in effect invents a problem in order to solve it. In other words, the RPC says, in terms, in the impact assessment statement—I have pity on those who have to draw it up—“What is the problem that we are trying to solve?” Because it had not been told exactly, it had to postulate what the problem was. It finds itself going around in concentric circles. In the words of the RPC:
“The IA is not fit for purpose”.
That is not to do with the probity of the people writing it. If I was a former Permanent Secretary of a government department or a former Cabinet Secretary, this would to me be a further example of the way in which respect for the quality of the Civil Service, which, from the famous mid-19th century Northcote report, has been a model for the world, has vanished. Now, civil servants are being used as footballs. It would be very useful to hear from judges, former Permanent Secretaries and others without a political axe to grind—as we obviously can be said to have.
The committee states:
“The IA is not fit for purpose”,
and that it,
“needs to provide a more detailed assessment”,
of the costs. It finds that the impact assessment probably underestimates the cost to trade unions by 100%. In other words, instead of being £400,000 it is probably £800,000. It depends to some extent on the cost per hour of a typical person responsible for those matters in a trade union. The IA puts it at £12 an hour, in line with a voluntary organisation. I may say that the houses that trade union officials live in are not palatial, but trade union officials with those responsibilities get more than £12 an hour. It is that on which we base the rest of the edifice of cost, which the Regulatory Policy Committee says is grossly underestimated.
As we go through the clauses, the case will build for the whole measure being a long way over the top. It is then quite embarrassing to have to ask people: what can we do to amend it? Frankly, the concept is so flawed and so politically motivated that actually clause stand part is the only way to approach it; you might say that about this whole section of the Bill.
Submissions have been made by individual unions. The mindset on the part of the Government is that all those unions are affiliated to the Labour Party by some wicked connection. “Did you know?”, they might say. I will be corrected if I am wrong, but in terms of the number of unions, I think that only 20% or so of unions are affiliated to the Labour Party. My noble friend Lord Whitty says that I have overestimated it, but I will say 20%. We are talking about unions being affiliated to the Labour Party, but not all unions are affiliated to the TUC. In a later amendment, I will be presenting some of the detailed concerns about the Bill from the Royal College of Nursing. It is not affiliated to the TUC. I do not think that it will ring the same bells in the mind of many members of the Conservative Party as unions which are part of the TUC. It makes a point, which is well made in the TUC’s main submission, that people jump to the conclusion that there may be civil liberties issues in Part 2, but there are not civil liberties issues in Part 3. That is not the case at all when one thinks about the circumstances in which people can be identified in reports to independent assessors. There is no regard to information which is supposed to be private, in some cases because names and addresses are sensitive.
At some stage during this pause, between now and the new year, a process must take place to test whether we on this side of the House are right, or whether people on the other side of the House are right. It will not be easy to judge this today, but I think that the case we are putting forward, and will continue to put forward, will prove overwhelming.
My Lords, I do not want to repeat points which have already been made by other noble Lords, but two points do bear underlining. First, the consultation period has already been mentioned, but I am not sure that noble Lords know its exact dates. It opened on 17 July this year and closed on 16 August. I would like to ask any fair-minded person whether they thought that to be a sufficiently long period for consultation, and whether that was the right time of year to have such a serious constitutional consultation. My second point, which has already been made but bears repeating, is that the Regulatory Policy Committee stated that:
“The impact assessment lacks a sound evidence base and is insufficiently robust to justify RPC validation of the estimated costs to civil society organisations (trade unions)”.
That is a damming indictment of the process that this Government have adopted. Even if the proposals were valid and fair, and even if we understood their motivation, I would say that the process is not just flawed but a public disgrace.
Let us look again at the impact assessment. I should emphasise that I am not criticising the civil servants who drafted it. They are magicians; they have conjured up some window dressing for this crackpot idea, which puts them on a par with Tommy Cooper. I blame the crackpot idea. The impact assessment states:
“Anecdotal evidence from a few employers provided as part of informal consultation with stakeholders suggests that some employers would benefit from being provided greater assurance that membership lists are accurate”.
“A few employers”; “suggests”; “some would benefit”: how in the name of bureaucracy are some employers going to benefit from a certificate? That is all that they are going to get. In the next paragraph the impact assessment states:
“Given the complexity of maintaining up-to-date registers there is a danger that trade union members, employers and the general public will not be confident that unions are complying with their duty to maintain an accurate and up-to-date register”.
Who says that there is a danger? Here is another quote:
“We have received views from some employers that there is a perception”—
this is going further and further back—
“that trade union membership details may be inaccurate”.
Yet the impact assessment then goes on to state:
“But we have no direct evidence that unions are not complying with the existing statutory duty to maintain their list of members”.
Let me repeat that. This impact assessment—which the Government expect us to take seriously, even though it was not actually published at the same time as the Bill—acknowledges that there is no evidence that unions are not complying with the existing statutory duty to maintain their list of members. This is a shocking example of a complete failure to produce evidence to justify this dubious policy.
The finances are also way out of line. We are told that independent assurers will be appointed from professional bodies such as solicitors, auditors and scrutineers. The cost to the trade unions for these assurers is estimated by the impact assessment to vary between £5,000 and £15,000. I have never met an auditor yet who would get out of bed for those sorts of figures. I could go on. The intellectual base and the rationale for this proposal are absent, but the petty prejudice of this Government is only too obvious.
My Lords, my noble friend asked at the beginning of her speech whether the Committee thought that a 30-day period—no more than that—was adequate for consultation. It is quite clear that the committee of the noble Lord, Lord Goodlad, which has reported on consultation matters, thought that such a period is inadequate and that a six-week period ought to be regarded as a working minimum. As my noble friend pointed out, the period in question partly covered a holiday period as well. That is just one flaw in this process, which is another example of this Government’s propensity to cobble together wholly unrelated issues into a single Bill.
I said at Second Reading on the anti-social behaviour Bill that it was not so much a curate’s egg as a curate’s omelette, combining as it did a variety of different substances. I said on that occasion that there were unsavoury ingredients; I have to say in connection with this part of the Bill that these are certainly unsavoury ingredients. It is strange, is it not, that this is a Government who have taken so long to begin to do anything about the massive scandals in the banking industry, the regulation of letting agents—my noble friend Lady Hayter has been pursuing that for some years—the energy companies or payday lenders, none of which are effectively regulated but are all matters of huge public concern? Yet they do not get legislation, let alone legislation in the form in which it emerges in this Bill.
The Explanatory Notes give some justification for Part 1, the part of the Bill that was contained in the coalition agreement. I think it was also in the Conservative manifesto. It was certainly the Prime Minister’s intention to deal with the “next scandal” which he, perhaps rightly, identified as political lobbying. Three years on we get a Bill which deals with that, after a fashion, but with these additional elements thrown in—and in a quite unjustified and unexplained way.
The Explanatory Notes do not touch on the rationale for these proposals. Just as the anti-social behaviour Bill includes such matters as dangerous dogs, firearms, court fees and policing, all dragged together in a Bill which is supposed to be dealing with anti-social behaviour, in this Bill we get proposals, out of nowhere, affecting trade unions in a way that is not imposed on any other sector. It is not imposed on professional bodies or, in anything like this form, on the world of charities. It is purely a question of singling out trade unions. As others of my noble friends have said, perhaps these proposals were intended to convey the misguided view that these are all political organisations pledged to support the Labour Party, which is palpably not the case. It is an unfortunate example of recidivism on at least the Conservative part of this coalition Government that they should hark back to that kind of divisive and inaccurate view of the trade union movement, which is much broader than they would like people to think.
There is no justification for Part 3. We have yet to hear from the Government why at the last minute they have chosen to add this dubious ingredient to the legislative omelette to which I have referred. It will be interesting to hear what explanation the Minister can give over and above the flimsy grounds that have been referred to by my noble friends already, particularly my noble friend Lady Donaghy, and the handful of responses that conditionally seem to raise concerns that have not been adequately explored or explained. This is an unworthy addition to a Bill that should have dealt with the much more serious problem of the impact on our parliamentary democracy of lobbying, which the Prime Minister identified all that time ago. This is hugely important.
When it comes to compiling information, perhaps the Government should give more attention to ensuring that we have a fully complete electoral register underpinning that parliamentary democracy, while expressing their concerns in this very party-political way about the membership of trade unions organisations, which are already significantly regulated. I hope that this debate will persuade the Government to have second thoughts. I am not over-optimistic, but they really ought to have second thoughts about pushing forward a measure that is irrelevant, in this part anyway, to the needs of our country, to the role of the trade unions and to industrial relations.
It also imposes a significant financial burden on the sector. In local government, we have something called the new burdens theory, under which, if new responsibilities are laid on local authorities, the Government are supposed to make financial allowance for them. There is no indication whatever that they will do so here. Yet this is a Government who, in their legal aid provisions, scramble round to find areas for cutting back on access to justice for minimal savings. They are prepared to inflict on organisations representing millions of people costs in excess of those that they are seeking to achieve by legislative measures in that area. It is a disgrace and the Government should think again.
I support my noble friends Lord Monks and Lord Stevenson. Trade unions are a very important part of civil society. In their contribution to it they have many proud achievements: the equal treatment of part-time workers; the financial assistance scheme for pensioners whose companies go bust; and the national minimum wage, to mention just a few. These concepts were challenged at the time, but are now accepted as an integral part of a civilised and advanced society.
A free and independent collective voice for ordinary working people is also an essential ingredient for a secure democracy, whether we look back to the 20th century or to what is happening in some emerging economies. Oh, for some of the mature, stable, free, independent voices to address some of the issues that have occurred in those civil societies! In spite of that, at the moment we have a narrative that quite crudely says, “Unions bad, employers good”.
We are seeing in this Bill an opportunity to give extensive powers to part of the state to access trade union membership records, allowing third parties, whoever they may be, to make complaints. These powers are being granted in the absence of coherent reasons for the Government to make this necessary, or of a problem that they are seeking to remedy. We are struggling to understand that. This is a sizeable attack on an important, voluntary set of organisations in their contribution to civil society, and they are being subjected to potential onerous conditions.
Much mention has been made of strike ballots. I confess to having conducted quite a few in my previous existence. As my noble friend Lord Whitty commented, they are about bargaining units and who are the union members within those units. The employer wants to know exactly who is involved in the strike and which employees will be absent. Employers can readily seek injunctions if they are unhappy with the information that unions provide. I know to my cost—I have experienced those injunctions and have had to stand there and explain in detail. I do not bite ankles, but I still found myself facing an injunction.
If you have a very large employer and employees move around a lot, it can be quite difficult. You have a very good database of the members and their membership, but you do not know which operational unit members may have been moved into by that employer. There are some quite significant challenges on trade unions to keep on top of their membership records, and to keep on top of them for strike ballot purposes, which seem to be being swept away as somehow not fit for purpose and really quite trivial, as if we really needed these more onerous conditions to come into play.
The right to freedom of association should not be made too onerous or undermined too lightly if one values democratic society or if one is having difficulty with the terms of political debate, because the price is really quite high. I fear that the Bill may have unintended consequences, because it is being rushed through. It has not been thought about and there is no evidence of the compelling reason for these changes.
The Bill provides the certification officer with extensive new powers to access and retain the registers of members’ names and addresses, and several other documents that he may wish to get his hands on when he has reason to decide that he needs them. It is a fact of life—I have gone to factories in my coat when it is quite cold and spoken to employers and union members—that employees are frightened of letting their employer know that they are a trade union member. Even if there is not black-listing, it is quite scary when you feel that your company, your factory or your workplace is getting really bad, with random redundancies and wages being cut. You cannot articulate that as an individual, so you take the initiative to try to find a collective voice or some lady or man who will come to speak for you, because it is quite frightening to speak to your employer. People say, “I want to join the union, and I want the union to come, but don’t tell them I’m a member because I’m petrified of the consequences. When you’ve got enough members and you’ve got recognition, fine—but I don’t want it to be known that I’m a union member”. That is the reality in some workplaces. They are not all colossuses, striding around; a lot of it is about frightened people without a voice, and sometimes the trade union is their only prospect of getting a collective voice. I have had it said to me, and I have done it myself. You have to put their details on the central membership record, but you take action to make sure that their details are not circulated; you promise that you will not bandy around the details of their membership but will protect them. I worry that with third parties and whoever—and who knows how the provisions of the Bill could evolve, when we start getting into the granularity of challenging membership records—things might be done to vulnerable individuals that were never intended as a consequence of the Bill. We may start to undermine the freedom of association and the right to the collective voice of which, I hope, we are all so proud and which are such an essential part of an independent democracy.
My Lords, I start, as I did at Second Reading, by declaring my interest as a member of a union. I thank all noble Lords who have spoken in this debate. There have been some excellent speeches, which, taken together, have put the onus on the Government about the content, consultation, timing and purpose of the Bill in such a way as to leave one with the very strong impression that this is, in some sense, a very partisan measure.
If I were the Minister and had felt the strength of what was being said, I might want to crawl away and lick my wounds at this stage. The Minister does pick them. He has had this experience before, so perhaps he will learn from it.
We believe that Part 3 is unnecessary. It has been described as a confidentiality-breaching, red-tape-increasing solution to a problem that does not exist. So I invite the Minister to demonstrate to us that there is a serious public policy issue behind this proposal. When he responds, will he state as clearly as possible what he thinks the problem is, what this Bill will achieve that current legislation does not achieve and why the measures he is proposing will do more than simply increase regulatory burdens on trade unions? I hope he will do better than simply repeat what is in the BIS consultation which states:
“Trade union activity has the potential to affect the daily lives of members and non-members. The general public should be confident that voting papers and other communications are reaching union members so that they have the opportunity to participate, even if they choose not to exercise it. As a result, unions also have a responsibility to give public assurance that they are keeping up-to-date registers”.
It is motherhood and brown bread.
We agree with that, but as the Minister well knows, union membership is already regulated by the Trade Union and Labour Relations (Consolidation) Act. Section 24(1) puts a duty on unions to maintain an up-to-date register of members’ names and addresses so far as reasonably practicable. This legislation has stood the test of time since the days of Mrs Thatcher. In recent times, unions have always had a legal obligation to maintain accurate membership lists. As it happens, it is in their own interests to do so, and the certification officer already has sufficient powers to deal with inaccurate membership records, but has not needed to do so for many years. So the Minister should, in words of one syllable, explain precisely what is wrong with that legislation.
As has been said already, we are not aware of any calls having been made to the Government to extend this provision. BIS, the certification officer and ACAS have confirmed under freedom of information requests that they have received no representations for such a measure. Not even those employer and right-wing groups that consistently call for further legal restrictions on unions have ever campaigned for this change. Can the Minister explain precisely what public concern he is responding to with these proposals?
There are a number of organisations whose list of registered members is of real importance to the public; doctors, lawyers and chartered accountants come to mind. If someone wants to check whether a professional is on the list, the accuracy of that register is key to the assurance such a register provides, so one would expect that on the lines now being suggested for trade unions there must be external, independent checks and there must be certificates in place to provide comfort to patients or clients that the relevant registers are up to date. What do we find? The Library kindly carried out a survey for us of some bodies.
Chartered accountants must belong to a recognised body, such as the Institute of Chartered Accountants in England and Wales or other membership organisation which protects the quality and integrity of the accountancy profession. I am a qualified accountant with the ACCA. Our Library’s research has failed to locate any independent membership verification of its membership list. The ICAEW’s members elect members of their council but still have no independent assurer to check the list of voters, their addresses or whether the details held are accurate and complete.
The Bar Council represents barristers, but is not a trade union, although it represents the interests of the Bar on all matters relating to the profession: trade union, disciplinary et cetera. Although the Bar Council is the source of information about whether someone is a barrister, it told the Library that its membership list is not independently verified. Solicitors are represented by the Law Society, which aims to help, protect and promote them, but its list has no independent outside person to assure the public of its accuracy and completeness.
The strangest is doctors. Doctors are required by law to be registered with the GMC before they can undertake medical practice, and the GMC’s list includes details of their qualifications and their fitness to practise problems. It is the doctor’s responsibility to be on the register, and there is no independent assurer to certify the accuracy of that record. However, the trade union to which doctors belong—the BMA—will have to appoint such an assurer to confirm its records. Perhaps the Minister could explain why it is more important to have an externally verified list of BMA members than the far more significant list of medical practitioners held by the GMC.
As is now well known, this Bill was published as the summer Recess started and was rushed through the House of Commons—so rushed that the regulatory impact assessment for Part 3 was published only in September. It has only just been made available, during the Committee stage of the Bill in the other place. As we have heard, however, it has been considered by the Regulatory Policy Committee—an independent body largely composed of senior industrialists—and has been given a rare red rating by that body. The last one was in connection to “shares for rights” in a Bill that the noble Viscount might well recall, it having been debated rather vigorously in this House.
On the impact assessment, the Regulatory Policy Committee said:
“The IA is not fit for purpose. The assessment is not sufficiently robust to justify validation of the equivalent annual net cost to business figure … It is unclear how accurate and up-to-date a membership register will have to be for a union to be considered ‘compliant’ with the proposed new requirements; or what process of investigation would be undertaken by an independent qualified assurer, or how rigorous that process would be. Thus, the accuracy of a union’s register, the time costs of the assurance process, and the fee payable to the assurer, all remain highly uncertain”.
Therefore, it is not just saying that it does not believe what is there; it is saying that the way the Bill is constructed is so vague and imprecise that it is not possible to draw a conclusion as to whether the costs outweigh the benefits that have been provided. As we have heard, the benefits are rather low. As has already been mentioned, the committee notes that the very short consultation period and the failure to follow appropriate better-regulation framework processes put in place by the Government are both factors that may contribute to the lack of a sound evidence base. This is a truly shameful state of affairs.
My noble friend Lord Monks asked the Minister to explain why the department did not follow the better-regulation framework processes. On the points of substance, will more evidence be gathered? Will we get a more detailed assessment of all likely costs to the trade unions? Will there be more evidence gathered from consultation with stakeholders? All these points were made by the Regulatory Policy Committee. Will we get a figure for the estimated cost to unions of changing the rules before the Bill finishes its consideration in this House? We need this if we are to consider this measure in the round, so we really need a reworked impact study addressing the complaints made by the independent committee. Will we have this and, if so, when will it be ready?
Having said that, there is one section on the impact assessment that is positive. Again, I would like to ask the Minister what he reads into this. It says, on the question of the one-in, two-out rule:
“The measures contained in this impact assessment are in scope of the one-in, two-out rule. The Bill will impose a net annual direct cost on trade unions, which are classified as civil society organisations”.
That being so, could we please learn what the “two outs” are that will be given to the trade unions in return for the “one in” that has been proposed?
Ministers have stated, as they are required to do, that the Bill is compliant with the Human Rights Act, but the Minister will be aware that Liberty believes that the introduction of additional compliance and scrutiny measures on trade union registers of members may constitute a breach of Article 11. That article protects the right to freedom of association, including the right to form and join a trade union. As has been said, restrictions are permitted only if they pass a test of pressing social need and proportionality. Will he explain why he thinks that this additional burden of measures on trade unions does not breach the right in Article 11(2), in the light of its potentially intrusive nature into the private affairs of union members and unions’ internal affairs? Can the Minister set out the legitimate policy aims that pass the strict test expressed in that article?
Without an adequate explanation of what the Government are trying to achieve here, far better arguments about why the existing legislation is deficient and the information to judge whether the costs imposed justify the regulatory burden being introduced in the larger unions, it is hard to see why we should not proceed to oppose the clause stand part Motion, as we have proposed. As my noble friend Lady Drake said, the unions in Britain play a significant part in the modern economy. They should be cherished, not castigated. As my noble friend Lord Whitty said, if the Government had brought forward such a burdensome set of duties to any other section of civil society, there would be an outcry. There is indeed an outcry and we should listen.
My Lords, my first point is that I do not wish to make any reference to reports that I read in the Sunday Times yesterday. As the noble Lord, Lord Monks, correctly said, the certification officer has been called in to investigate; it is not for me to comment further and it is for him to progress or otherwise.
Secondly, I want to acknowledge the many distinguished Members opposite who have led unions and have had substantial responsibility for individuals within the unions in the past. Some of these unions have been very big, with many hundreds of thousands of members, so I want to thank those noble Lords for their contributions. I realise that in the past they have been very much in the public eye with all that has gone on over several decades.
I shall deal with the amendments to Clause 36 and the question of whether the clause should stand part together. Clause 36 is intended to give widespread assurance that unions are able to contact their members and that, as a result, union decisions reflect the will of their members. This should enhance the democratic credibility of union actions to a wider audience. The noble Lord, Lord Stevenson, could not have put it better. This is important because unions have extensive influence—in public life and in the daily lives of their members. Actions they take can also have an impact on non-members. As the noble Lord, Lord Monks, and the noble Baroness, Lady Turner, have rightly highlighted, the statistics demonstrating the value that the public place on the unions is high. This is why there is a need to be sure that the registration lists are up to date.
Union members work across a range of critical areas, including in the public sector. Union membership is around 56% in the public sector and 14% in the private sector. We do not want to change or inhibit the vital role that unions can and do play in society—which was raised by the noble Baroness, Lady Drake—but we want to ensure that there is confidence in their accountability to their members. Since 1984, there has been a statutory duty on unions to maintain a list of members’ names and addresses. This is currently enshrined in Section 24 of the Trade Union and Labour Relations (Consolidation) Act 1992, which requires unions to keep the list up to date,
“so far as is reasonably practicable”.
This register will be a union’s primary source for ensuring that its communications, including ballot papers, reach members. I think everyone agrees with the principle of maintaining the register. That principle is not under scrutiny today, and the existing duty remains unchanged. However, there is no mechanism to require reporting on compliance with the statutory duty.
Clause 36 introduces a reporting regime that is proportionate to the practicalities of the duty to which it relates. Unions will be required to supply an annual membership audit certificate to the certification officer, alongside the annual return. As this provision is about giving widespread assurance, all unions will have to make the most recent certificate available to those who request to see it, either free or for a reasonable charge. The certification officer will also have to keep copies of all certificates and allow the public to inspect them. This addresses the fact that there is currently no real way for members, employers or the wider public to check how far the existing duty is being complied with. Finally, Clause 36(3) and (4) ensure that a trade union can discharge the new duty on behalf of its branches and that federated unions must comply with the new duty.
Amendment 118A—and Amendment 118D, which is consequential on it—seeks to limit the duty on unions so that they do not have to submit a membership audit certificate every year, but only if a complaint is made. In practice, if a complaint is received by the certification officer and he investigates, he will want to be satisfied that there is no breach of the duties in relation to the register. If he discovers such a breach, it would be more appropriate to provide a remedy as soon as is reasonably practicable, rather than to impose a reporting requirement. If there were no annual reporting requirement, the legislation would not achieve the level of routine assurance that we want for union members and the wider public. Only individual union members have the right to check their details on the membership register, and they must be predisposed to do so. Even if the member does this, he or she has no right to see all of the register and, in any case, cannot know whether other names and addresses are up to date. Nor can the member know who should or should not be on the register. Therefore the member cannot ascertain or guarantee the accuracy of the register in its entirety. If the member checks the register and finds problems with the accuracy of his or her details, they can make a complaint to the certification officer. However, only the member has the right to do this and, as I have said, they will not be able to determine the accuracy of the register as a whole. If anyone else has reason to believe there might be inaccuracies, they could not make such a complaint. Even if the certification officer received allegations about the union’s register, under the current law he would have insufficient powers to investigate.
I am aware that unions and some noble Lords have argued that there have been a very low number of complaints about union registers. However, given the limitations of the existing regime that I have just set out, that is not a particularly effective indicator of the overall accuracy of union membership registers. Over the summer we carried out a targeted consultation exercise, which was mentioned by noble Lords opposite. Evidence from that suggests that unions face difficulties in keeping their records updated. The noble Lord, Lord Monks, stated that in his opening speech and I will say more about the consultation on it later. The CIPD commented:
“Unions have stated difficulties at times maintaining the addresses of members”.
A member of the Engineering Employers Federation also commented that trade unions,
“do not have a unified way of tracking membership and it remains difficult for them to do so”.
I believe that most noble Lords opposite acknowledge that.
When these measures were debated in the other place, a number of references were made to the challenge of maintaining registers because of the high degree of turnover in members, which was alluded to this afternoon. Around 2 million people move in and out of union membership a year, which equates to around one in four union members. That means that if a union does not regularly update its register, it could quickly become inaccurate. We propose a modest and proportionate approach to providing greater assurance that registers are as up to date as is reasonably practicable. We are not changing the way in which unions record member details, nor are we changing the existing duty to keep a register. Our focus is on the reporting requirements and effective enforcement. That means greater confidence that union members are receiving all necessary information, including the opportunity to vote on key matters such as a new general secretary. That also means greater confidence that when unions decide that they need to take industrial action—which is entirely their right—those affected know that members have been contacted and given the opportunity to vote. Membership audit certificates will be beneficial to unions, give confidence to individual members and more widely enhance the credibility of their decisions.
Amendment 118B would amend Clause 36 to allow a union to delay submitting a membership audit certificate if it is launching an appeal against it or the certification officer’s acceptance of it. I appreciate that unions will want to ensure that an assurer does not, mistakenly or otherwise, send a qualified certificate to the certification officer without the union knowing about it. I hope that I can provide some reassurance that this amendment is unnecessary. The current drafting of Clause 37 ensures that the assurer will send a copy of the membership audit certificate to the certification officer only,
“after it is provided to the union”.
Therefore the union will have seen the certificate and will have an opportunity to engage with the assurer. If the union is able to demonstrate that the certificate is inaccurate, it should be able to remedy it at that point. Furthermore, unions will themselves appoint their assurers and agree their contractual relationship with them. That gives a union discretion to require an assurer to allow the union to comment on any draft certificate or to discuss concerns before it is issued to the certification officer. However, we believe that it is reasonable to require that qualified certificates are sent to the certification officer as soon as reasonably practicable after they are given to the union so that he can decide what steps to take. We regard this as a necessary part of the assurance process.
If a union is required to appoint an independent assurer to provide a certificate because it has more than 10,000 members, that certificate is the membership audit certificate for the purposes of Clause 36. Clause 36 also sets out what is necessary for unions with 10,000 members or fewer. Those unions will be able to authorise a union officer to sign off the certificate, with a statement that, to the best of their knowledge and belief, the union has complied with its duties under Section 24. As we expect smaller unions to have a less complex register, we think it is reasonable to consider that a union officer will have sufficient familiarity with the content to be able to make such a statement. Amendment 118C seeks to alter Clause 36 so that the assurer would no longer provide the membership audit certificate for unions with more than 10,000 members. That would mean that all unions would provide a self-assurance that they are complying with the statutory obligation under Section 24 of the Trade Union and Labour Relations (Consolidation) Act. This amendment would not give sufficient assurance that unions are maintaining accurate and up-to-date registers and can contact their membership. We already have a regime which relies on individual union members actively checking their membership details.
Nowadays, some unions can be extremely large organisations. For example, as many noble Lords opposite will know, UNISON has 1.3 million members and Unite has 1.5 million. To put that in context, the NHS has around 1.7 million employees. Record-keeping for such large organisations is likely to be complex, and maintenance will need to be ongoing to ensure that the register is up to date, particularly given the high level of reported churn in union membership. Equally, where a union consists of many individual branches with individually held membership information, regular and diligent maintenance of the membership register as a whole will be critical. The noble Lord, Lord Monks, recognised that. We acknowledge that these lists cannot and will not necessarily be 100% accurate. In addition, the larger the organisation, the more probable that communication between the union and its members relies on being written rather than oral. Branch secretaries are unlikely to know all their members and may not even have met some of them. It is therefore appropriate that there is independent assurance for larger unions.
This amendment could also have the unintended consequence of placing additional burdens on larger unions. In defining the independent assurance, we have focused on the assurer awarding the membership audit certificate to larger unions on the basis that they have adequate systems in place to allow them to comply with Section 24. That is because we considered it unduly burdensome and unreasonable to expect the assurance to be an audit of every individual record. The effect of the amendment, however, would be to require these unions to give assurance that they have complied with Section 24 to the best of the union officer’s knowledge and belief. That means that the officer who signs the certificate essentially guarantees, to the best of their knowledge, that the register is accurate and up to date—again, so far as is reasonably practicable. We believe that this could be much more onerous for larger unions than what the Government propose. The annual assurance of unions’ compliance with this duty will demonstrate to members, employers and the public that unions are diligent in their maintenance of such complex records. It will also provide greater confidence that union activity is accountable to the membership.
Will the Minister address the point made by many of us about the report of the business advisory committee, which reached the conclusion that the so-called cost-benefit analysis carried out by the department and the impact assessment are not fit for purpose?
I was about to attempt to answer the many questions that were put to me. However, before I come to answer the noble Lord’s question, I wanted to say that the noble Lords, Lord Monks and Lord Beecham, and the noble Baroness, Lady Turner of Camden, basically said that they considered Part 3 to be a politically motivated attack on the unions. I think the noble Lord, Lord Monks, used the expression “vindictive attack”. Perhaps I should not be surprised at their reactions, as we are perhaps being accused of placing our tanks on their lawn. That is just not the case; if anything, it may be only the front of the front wheels. However, this is not intended to make it harder for trade unions to operate. They are membership organisations, and as such have a responsibility to their members to keep their register of members’ names and addresses accurate and up to date so far as is reasonably practical. That general principle is already a statutory obligation, and it is right that the Government should try to ensure that these requirements on unions to fulfil this responsibility are adequate. As I said earlier, trade unions are vital participants in the economy. They work with employers to maximise employee engagement and deliver practical solutions to workplace issues. This is why we currently engage with trade unions on key policy areas, much more widely than we are talking about today, such as employment rights, skills and manufacturing strategy. The Business Secretary regularly meets the general secretary of the Trades Union Congress to discuss current policy matters.
I would like to address the question raised by the noble Lord, Lord Lea of Crondall, and by the noble Lords, Lord Monks and Lord Whitty. That concerns the RPC report on the BIS impact assessment and the shortfalls and the evidence base, as it was put to me. I am aware that the RPC has argued that we have underestimated costs, particularly with regard to changing union rules. We have received no information on this from unions, despite seeking their estimates on impact. We would be pleased to take any figures into account should they wish to supply them, but we anticipate that unions will have routine written communications with members and also an annual conference and that should allow them to include those routine activities to take steps to make the necessary changes. Perhaps I can reassure noble Lords that we will continue to work with the RPC to see how we can improve the evidence base further and we will take into account any further data that unions and others can supply and choose to supply.
The noble Lord, Lord Whitty, raised the issue of whether there would be any change to the definition of the phrase “so far as is reasonably practical”. The test for unions that they maintain a membership register that is up to date and accurate so far as is reasonably practical has actually existed since 1984 and has been interpreted by the certification officer in decisions made under Section 25 of the Trade Union and Labour Relations Act. We do not intend statutorily to define it further. It is important that the legislator recognises that the duty takes account of the fact that unions of different sizes and types compile and maintain their membership data in individual and varying ways. At the moment, we anticipate that an assurer will want to check how the union collects data from new joiners, how they remind members about keeping records up to date, the ease with which members can notify changes and how quickly changes are made. We would also expect that an assurer would be interested in the data cleansing processes that larger unions use for electronic databases.
The noble Lord, Lord Monks, raised the issue of the cost to unions. I would like to say a word or two about costs. He said that they would add considerable burdens on the unions. We have assessed the average annual cost as being 6p per union member. I think the noble Lord would have read that earlier. That equates to an average of half a penny a month. However, union monthly subscriptions vary but typically they range from £1 per month to something around £35 a month. We have sought to take an approach which is proportionate and seeks to minimise the burdens on unions.
I thank the Minister for giving way. Is it not quite incredulous to use the cost in that way, breaking it down person by person in that way? We are talking about half a million pounds to be spent on a purpose which he believes gives confidence, assurance and so on but, if there is no real problem in the first place, the whole thing is built on a piece of tissue paper. That 6p becomes even more important to people like me. It is not so much that you have your tanks on our lawn, you have your hand in our pocket.
These are the figures that I have presented, and it is fairly natural to break it down on a per-head basis. I would like to focus on costs. As set out in the impact assessment, I expect the cost to the public purse of implementing the provisions to be around £150,000. The additional responsibilities of the certification officer will mean hiring two to three extra staff members in his office. Some expenses may also be incurred if a complex investigation has to be undertaken, although it is likely that those investigations will be rare. We believe that the changes we are making are relatively modest. The new powers for the certification officer are largely consistent with activities that he undertakes at present. The Government have no plans to make wider changes to the role of the certification officer.
The noble Lord, Lord Monks, raised the issue of, as he put it, state intrusion into unions. That goes back to the first question that I answered for other noble Lords. The Data Protection Act will apply to the certification officer, his inspectors or assurers and they will be required to use any personal data, including data on union members, consistent with the protections that it contains. The Information Commissioner has powers to enforce the data protection principles and can impose substantial fines for some breaches. In addition, there are confidentiality obligations contained in the Bill so that an inspector or assurer can use or disclose information only if they do so consistently with the exercise of functions in relation to the membership register or criminal investigation or proceedings or where consent has been given.
I would like to address two further questions. The noble Lord, Lord Monks, raised the issue of a perceived breach of Articles 8 and 11 of the ECHR and the report of the Political and Constitutional Reform Committee, which I believe I have answered already. The Government have responded to the committee’s report, explaining that these do not breach rights to privacy or freedom of association. That is because there are legal safeguards in place already. The Data Protection Act will continue to apply and the Bill introduces new safeguards as well.
The noble Baroness, Lady Donaghy, challenged the length of consultation. Perhaps I may address this directly. BIS published a discussion paper which received 42 written responses from a range of groups, including trade unions, legal firms, businesses and charities. The Deputy Prime Minister, BIS Ministers and BIS officials have discussed the proposals with the TUC at various points throughout the progress of the Bill to date. The evidence base in the impact assessment is based on what unions have told us and we will continue to listen. The Minister for employment relations has already said in the other place that the Government will consult further on the role of the assurer; for example, we are committed to allowing unions flexibility in the implementation of these new measures while supporting a smooth transition. We are also committed, as I said earlier, to continuing to work with the RPC as well on the evidence base for the impact assessment.
I ask the noble Lord to withdraw his amendment and beg to move that Clause 36 stand part of the Bill.
My Lords, I am grateful to those who have taken part in what has been a wide-ranging debate, at least from this side of the House, which I suppose is only to be expected on this kind of subject. I ask fair-minded Members of the House, of which there are many on all sides, to consider this measure. The case for it is extremely flimsy. Are there not better things for the people from the department and the Minister to be doing? In a period of economic difficulty, the business department is messing about getting extra confidence and extra assurance about union membership records when, over many years, the complaints have been negligible. The existing requirements, which have been put in place during and since Mrs Thatcher’s time, have proved robust and effective. In a sense we are adding something on. As I mentioned before, it is almost like a rite of passage for every Conservative Minister in this place to have at least one kick at the trade union movement. I think that is very much what is happening now.
On this side of the House, we do not intend to press the amendments today but we are giving notice that, after a pause which will take place to enable Part 2 to catch up with Part 3, we will be making the point again on Report. It is an absolute waste of time.
Amendment 118A withdrawn.
Amendments 118B and 118C not moved.
Clause 36 agreed.
Clause 37: Duty to appoint an assurer etc
Amendment 118D not moved.
118E: Clause 37, page 40, line 9, at end insert—
“(c) to have a duty of confidentiality to the trade union and its members; and(d) to abide at all times by the trade union’s obligations under the Data Protection Act 1998 to protect the information of members”
I shall speak also to the other amendments in this group. They deal with confidentiality and administrative complexity, as well as some points concerning the position of the assurer. Incidentally, I rather liked the earlier comment by my noble friend Lord Stevenson that this provision amounts to job creation for chartered accountants, of whom he is one, but I believe that it will very much benefit a small part of the population.
I shall deal quickly with each of the amendments. The Bill has been much criticised by civil liberties organisations for allowing potentially significant breaches of data protection law. A legal opinion by Michael Ford QC, acting for UNISON, points out that under the European Charter of Fundamental Rights only a substantial public interest would justify the disclosure of this membership information. As we have said before—I shall not labour the point—where is the substantial justification in this case?
Nor is it absolutely clear that the Bill contains any suitable safeguards to protect sensitive personal data. An inspector would owe a duty of confidentiality to the certification officer but not, it seems, to the union or its members, and no duty of confidentiality is placed squarely on the shoulders of the certification officer. We are advised by legal advisers that the Bill may well not be permissible under the data protection directive, and Amendment 118E seeks to remedy that.
Amendment 118F seeks to ease the requirements on the union to appoint or terminate the appointment of the assurer and to put it in line with the terms under which scrutineers are employed to oversee union elections and ballots. Currently, the Bill tells unions to alter their rules but, notwithstanding that, the Bill’s provisions override the rules. An assurer could be removed only by resolution of a general meeting or conference. Not too many people have that requirement on them as far as auditors are concerned. It is not necessary to call a special shareholders’ meeting to get rid of KPMG or Deloitte or whoever, but there would be a requirement on a union in this area if this part of the Bill went through.
Amendment 118G would improve a union’s ability to remove an assurer who had breached the confidentiality of the union or breached certain other requirements. It stresses that the obligation is to the union and its members, and there is not necessarily a general airy-fairy commitment to give confidence to the wider world. As it stands, this provision would be extremely intrusive to the union’s right to keep its information confidential. As others have said, some of that information could be quite explosive in certain industries with more unscrupulous employers.
Amendment 118H would qualify the requirement for a system to be “satisfactory” by adding,
“so far as is reasonably practicable”,
which is very much in line with Section 24 of the Trade Union and Labour Relations Act.
Amendment 118J is rather important for employers, and I am surprised that some of them have not made more noise about this. The check-off system operates when the employer deducts the union’s subscription from the employee’s pay and, probably on a quarterly basis, sends the payment and an administrative charge off to the union. If the assurer finds any inaccuracies in some of the information and data that a union is holding, they may well be traceable to the employer—they may well be traceable to the payroll system or the way it is administered. In a sense, under Amendment 118J, we are asking, “What about the employer having to comply with investigations in this area launched by the assurer or the certification officer or one of his proposed inspectors?”. Amendment 118L would follow that up. It would provide the assurer with the ability to seek information from an employer for the same purpose.
Amendment 118K would put the obligation regarding record-keeping squarely where it should be if this provision goes through, and that is on a union nationally, not on the officer in charge of data handling in the union. It is not fair to put the obligation on a branch secretary, who may be a lay person. It is not fair to put it on the East Anglia regional committee, for example. The responsibility for good record-keeping should be very much on the national office, and I ask the Minister to look at that.
Amendment 118M stresses the obligations under the Data Protection Act, and this is also relevant to Article 11 of the European convention.
Amendment 118N refers to the test of reasonable steps that need to be taken by an assurer in the current draft of the Bill. How about raising the bar a bit and inserting the rather stronger requirement of “necessary” rather than “reasonable” steps? It is a very important matter that he or she is handling.
The purpose of Amendment 118P is to reduce the scope for the assurer to disclose information where a member is involved in criminal activity or some kind of corruption. We are trying to limit the scope of the assurer to make information available on a wider basis. At the moment, there are too many opportunities for an assurer to disclose information and perhaps data protection requirements, and thus breach the obligation to individual union members.
Those are the key points that I wish to put before the Minister. I beg to move.
My Lords, my noble friend Lord Monks has made a sophisticated case to the Government for making this whole clause and the invention of the assurer more palatable, or at least more workable. He has had to do so in a very complicated way because of the nature of the proposition. My opposition and that of my noble friend Lord Lea to the clause standing part is a more straightforward proposition: we are basically seeking to delete the clause.
We still have not had a proper explanation of why there should be an assurer. Incidentally, I need to apologise to the Committee and to Hansard: on occasion in the previous debate, I referred to an “assessor” rather than an “assurer”. I also apologise to the Minister. It was almost certainly down to my writing. The term “assurer” has a nice touch about it; it is as though the man from the Pru is coming round to collect your life assurance every now and again. However, it is not quite like that. What qualifications and what legal requirements does the assurer have to have? He or she is going to be employed by the union but approved by the state. This person may well be somebody with auditing qualifications but he or she is not an auditor, an accountant, a lawyer or a scrutineer in the sense of the ballot scrutineer, to which my noble friend referred. The post is an entirely new invention.
I go back to my earlier point. Why do we need this new invention? If the Government’s intention is to tighten things up, why do they not do that? Can we not rationally look at a proposition saying that the certification officer should have more powers or that the requirements on the union should be clearer or more stringent? However, that is not what the Government have proposed. They have simply proposed this intermediary, which is very strange.
I do not know how the general public will take to this. What is the assurer? It sounds to me like a third-rate television series: “The Assurer—Licensed to Check Membership Records”. Even more sinisterly, as in Nineteen Eighty-Four, it could be the kind of person who meticulously took notes of the proceedings of a committee in the old Soviet Union. He sat in the corner and nobody quite knew who he was, but you knew he was reporting on you, and you knew he was reporting to the Central Committee. Such a role is not of the organisation; it is not of the state; and it is not of a recognised profession; it is a new invention. To do exactly what? I do not think that, in all their interventions so far, or in what they have done with their advisers, the Government have come up with a clear definition of what this person is to do.
For the smaller unions—those with fewer than 10,000 members—the requirements in Clause 36 relate to an audit certificate. That is slightly more understandable. It has to be signed off by senior officers of the union. That is a procedure that many organisations know about. They have to bring in external auditors to check it and, if it is complicated, they have on occasion to ensure that their lawyers have seen it.
However, this new profession is not known to science or to society—or, so far as I am aware, is it known to legislation. If the Minister can point to a precedent I would be grateful, but it is not in any part of society that I am aware of, or in any part that bears any relationship to the context in which trade unions and employers operate.
If I were the Government, I would think that the best thing would be to delete this whole new proposition and instead get around to telling us clearly what this part of the Bill is supposed to do. Then we could have a rational debate. We might still disagree, but at least we would know what we were talking about. The main proposition here is to introduce into a very delicate and sensitive area—the issues of human rights and data protection have already been touched on, and will be again—an entity and a role that is unknown to all the players and unknown to the courts. If the Government were sensible, they would approach this in a cleaner way. They would make a proposition as to how they want unions to change their behaviour and what standards they want them to meet, and we would be able to see whether those were reasonable, rather than putting things in the hands of an entirely new concoction.
I therefore propose that Clause 37 should not stand part of the Bill. I hope that by the time we have completed our consideration of the Bill the Government will either have deleted it entirely or put something much simpler and more straightforward in its place.
My Lords, I support the amendment moved by my noble friend. One point struck me particularly, from my recollection of my own work as a full-time official in connection with recruiting in areas where there was no trade union membership. I am referring to people who were new to the trade union movement. The lack of confidentiality implied in this part of the Bill would be a deterrent to recruitment. Obviously, if you are trying to recruit people who have never been in a union before and are not organised, the last thing they want is for their details to be made available to anybody. They want to keep things close to themselves until they have recognition. Obviously that is important to them. A number of us have raised the issue of confidentiality, which is threatened unless this provision is either removed entirely or substantially amended.
I do not see why we should have to vote for yet another official—this so-called assurer. Where is he to come from? What sort of background is he to have? What kind of voice will the ordinary members have in relation to this individual? We do not want this new individual. We do not think the role is necessary, and I personally oppose this clause altogether—although the amendments tabled by my noble friends would undermine to some extent the opposition that some of us have on grounds of confidentiality. This is very important to new members, particularly those who have not been in a union before and who need some assurance of confidentiality if they are to remain with the union and support it as it struggles for membership and recognition. I therefore completely support my noble friends in their opposition to this part of the Bill.
My Lords, I add my support for the amendment. Orwell has been mentioned, and I have mentioned Kafka—but now I shall give a more homely sort of picture. One of the children says, “Mummy, what does Daddy actually do?” and Mummy replies, “Well, he’s an assurer.” I think that after that Mummy might have a bit of difficulty and wonder whether she had actually answered the question.
Let me apply the provision to electoral rolls. This is one of those phantom tasks on which you could expend the whole resources of the Central Committee of the Chinese Communist Party and still not solve the problem. The Minister has said that there is a problem with churning, and people moving house and so on, so we are to have more of the Central Committee investigatory branch investigating and then doing something about it. I do not know what it would be able to do if it is true that the rationale for the action, and the analysis of why there is a problem, is the changing nature of the economy and the churning of people in the trade unions. When would you have won the game? If that is the analysis you can never win the game. To use a different metaphor, you can always move the goalposts.
I hope that the Cross-Benchers in their massed ranks, between now and Christmas or a bit after, will be able to decide whether we are right or whether the Government are right in this way of stating, or inventing, a problem and begging the question to which there is not an answer as there cannot be an answer to the problem as stated.
My Lords, I have to confess that my experience of the unions is obviously much less extensive than that of opposition Members. I suspect that it is also out of date and rather specialised. I was a member of the National Union of Journalists for a decade or so. I never aspired to be an officer of the chapel, although I attended regularly, so my contribution to our consideration of this part of the Bill will have to be very limited. But it is genuine. I am really interested and concerned to ensure that we get this right.
I am listening very carefully to the debate on part 3—not least the two extremely important clauses that we are now looking at—and I want to speak specifically on whether Clause 37 should stand part of the Bill. I believe that we should retain it until we have seen something better, and I am not yet persuaded by the amendments. From what noble Lords on the other side of the House have said, I am not clear whether their principal concern is with the direction of Part 3 or the detail. Is it with the principle or is it with the practice? Different Members of your Lordships’ House have touched on both. Is it the intention or is it the impact? It may be both, but it is not entirely clear to me yet whether they think that the problem does not exist or that it is not being addressed in an appropriate way. The noble Lords, Lord Monks and Lord Whitty, said that accuracy was a problem. So it is not a problem that does not exist. There is a problem; the question is whether we have the right remedy for it.
I am not yet entirely clear, either, why those opposite seem to have so much fear of what is proposed. It seems to be an effective process for auditing membership records annually and having them independently signed off. That, surely, is healthy. Is there a problem with it? Surely it is not a burden for the smaller unions either. I am not quite sure where the National Union of Journalists is these days in the league table of membership; I suspect that it is not very big. I do not think that 10,000 members is an unreasonable cut-off point in Clause 37 for the smaller members not to have to self-certificate.
It seems to be not only a reasonable, moderate approach with benefits for ensuring that the electorate for ballots and other union processes are accurate, but a measure with potential future constitutional benefits. As other Members of your Lordships’ House may recall, I recently published a draft Bill with input from a number of parliamentarians at both ends of the building, and from across parties, to reform comprehensively the whole issue of party funding, including a donation cap. Labour Members have said to me regularly and consistently that for such a cap to work it would have to exclude affiliation fees from individual trade union members. If that is the case, surely it will be essential that everyone can have confidence in exactly how many of them there are before we can know that they have consented to pay into a political fund and that they want their money to go to the Labour Party.
That, of course, is not the purpose of this clause or this part of the Bill, since the Government are not yet committed to radical reform of party funding. But since the cross-party talks on that issue concluded in June, there have been some important signs of real progress that could make real development possible. After all, Mr Ed Miliband, having had his emissaries refuse to budge on the relationship with unions during the funding talks, has now made it clear that he does want to reform that relationship. Noble Lords will recall that he courageously made an important statement to that effect in July. He said:
“I do want any individual to be paying money to the Labour Party in affiliation fees unless they have deliberately chosen to do so. Individual Trade Union members should choose to join Labour through the affiliation fee, not be automatically affiliated. In the twenty-first century it just doesn’t make sense for anyone to be affiliated to a political party unless they have chosen to do so. Men and women in Trade Unions should be able to make a more active, individual choice on whether they become part of our Party. That would be better for these individuals and better for our Party”.
Labour Members cannot want both individual choice for members of trade unions on how they contribute to any party, and at the same time resist measures to make membership records more accurate and more robust. How can anyone suggest that individuals making that choice should be confident that it will be recorded in a sensible and accurate way year by year if they do not know that those records are up to date? Like many other measures in this Bill, I think that they will pave the way to make serious reform of party funding easier and more effective in the future. I hope, therefore, that the Leader of the Opposition’s commitments earlier this year will make it easier, too.
This part of the Bill may not be perfect, but it is potentially an extremely important part of the jigsaw that will have to be put in place if the Leader of the Opposition’s proposals for a new relationship are taken forward after the conference that he is proposing next year. To that extent, these clauses and this part of the Bill must be welcome to those of us on all sides of the House who are genuinely determined to try to take big donations out of British politics.
My Lords, I think that at Committee stage I can make a point. I think that the noble Lord, Lord Tyler, was out of the Chamber at an earlier stage when I said that I did not believe that it was the Bill’s aim to attack the funding of one political party. The Minister should respond to the noble Lord, Lord Tyler. I agree with him on most of his issues, including potential reform of party funding. However, he suggested in his intervention here that the Bill is not about better measures for trade union members and more transparency but about taking a serious step towards undermining the funding of the major opposition party. If that is indeed the case, this is an entirely different sort of Bill and one that raises even more important issues than have been raised so far. I should like to hear the Minister’s views on that.
I think the noble Lord, Lord Whitty, presaged his remarks with , “before the noble Lord sits down”, so I presume that I am still on my feet. I do not think that the noble Lord was listening entirely to what I was saying. I was saying that if the Leader of the Opposition’s proposal for a new relationship between his party and the unions is to be on solid foundations, surely one of the most essential elements of that new relationship has to be accurate membership records for the unions. This part of the Bill is important in that new relationship. I hope, therefore, that the Labour Party and its leader will think very carefully. If they want to improve this part of the Bill, I am sure that the Government would be interested—although I cannot speak for them. It is important that everybody should have confidence in the accuracy of membership of the unions.
My Lords, I do not want to prolong this but the noble Lord said that this Bill was about Parliament defining the internal constitution of an independent political party. There may be all sorts of things wrong with the constitutions of all the political parties represented in this House, and we all have views on that, but when the Government presented the Bill, that is not what they said it was about. We have now gone into huge new territory as a result of the intervention of the noble Lord, Lord Tyler, and we need the Minister to come clean. I hope that he will make it absolutely clear that the Government’s intention is not primarily to knacker a leading opposition party. If it is, it is a far more serious attack on democracy than even we supposed.
That was interesting. What have we learnt? We have made two rather important steps forward down the path of trying to understand why we are here today and why the Bill is being considered. The first is the Minister’s, I think off-the-cuff, but rather interesting comment, that he resisted the idea that he had planted tanks on our lawn—presumably the trade union lawn—but that the wheels were on the lawn, even if the whole tank was not. I know about tanks, and they can fire very large and rather dangerous weapons; they do not have to be on your lawn to do damage but, if they are on your lawn, it shows real intent. I am afraid that that cat is now out of the bag, so we have that logged.
I thank the noble Lord, Lord Tyler, so much for being present for at least part of the debate, and for being able to enlighten us as to what exactly is going on in the corridors behind the party front that we call the coalition. As my noble friend Lord Whitty said, he has given us the answers to the questions that we have been asking the Minister all evening and to which we have not had responses. I asked 14 questions in my speech and got not a single direct answer to any of them. We now know that this is the set-up for the battle still to come on the question of party funding.
Well, well, well. Here we were thinking that we were talking about important issues such as rights, civil liberties, and so on, when the real debate was about trying to establish a hegemony in terms of party activity that would perpetuate the Conservatives and possibly the Liberal Democrats—I have my doubts about that—against the opposition party as it is presently constituted. Presumably, that gives credibility to the theory that I have heard advanced around the place, which is that this part of the Bill was originally considerably longer and dealt with the question of party funding in relation to the unions, but because of the demarche by the Leader of the Opposition. Mr Edward Miliband, it had to be changed considerably, and all we have left is a warming pan in the political bed that we are addressing. It keeps the issue on the table so that, when and if the parties opposite get their act together, they will move in on party funding in a way that, as we have heard from the noble Lord, Lord Tyler, is so crucial to the future of both his party and, presumably, the Conservatives. Okay, they can change the rules—but at least that is helpful to us in knowing how to address the Bill in more detail when we come back to it on Report.
The amendments tabled in my name and that of my noble friend Lord Monks were difficult for us to frame because, like my noble friends Lord Whitty and Lord Lea, we felt very strongly that what was proposed in Clause 37 was not appropriate and did not satisfy the test of being in response to significant public concern, which we put to the Minister in Clause 36, but which he failed to answer. We felt that it was appropriate in the spirit of this House to table amendments in an attempt to ameliorate some of the harm that would be done otherwise. Our hearts are with clause stand part on Clause 37, and we will consider very deeply over the pause whether to come back to it.
As my noble friend Lord Whitty said, nobody has ever heard of an assurer. It is not a term that appears in any dictionaries that I have consulted. We do not know what it is. It is obviously important that jobs are created in our economy. We are grateful to the Treasury for thinking that they should do this, and the fact that there will be 10, 15, 20 assurers is obviously a great blow in support of the economic policies that the party opposite are trying to put forward. Really, the job is not worth the candle. As my noble friend Lord Whitty said, it would be much better if we were discussing practical things that could address a particular public policy.
It may be that a better self-certification system could be an advantage; it may be, because we do not know what the problem is. That would at least give a frame to the debates we are having. It may be that additional powers for the certification officer would also be of use. These things are matters that we could discuss. Cloaking them, as we have had already in Clause 36 debates, in some spurious idea that there is some concern out there that would be remedied by having an initial arrangement, is simply not sufficient. The Minister and the Government more generally should think again about this whole area.
During the debate, we raised questions about whether the confidentiality of the material made available to the assurer would be sufficiently robust to satisfy the points raised by my noble friend in other parts of the debate about recruitment and retaining members. I am sure that the Minister accepts that, for the confidentiality of trade union registers, these are really important issues. For many employees, their membership, or lack of membership, of a trade union is an extremely private choice, and one which they desire to keep confidential for many legitimate reasons. Indeed, the strength and legitimacy of these concerns was recently underlined by HMRC’s decision to back down in a dispute with Equity about providing personal information relating to its members following a strong response by the union, supported by Liberty, calling in aid Article 11 of the ECHR protections. The knowledge that under the new powers, trade unions could be required to provide their membership register to a Government body for any “good reason” may act as a disincentive for workers to join unions, particularly in light of the current concern over union blacklisting.
As this test is highly subjective, there is the potential for the power to be subject to abuse. For example, the Government may decide they have a good reason beyond that of ensuring public confidence in accurate records—their present argument—for wanting to know whether particular individuals have joined unions, and under proposed wording will be legally entitled to inspect registers under the guise of checking whether the register has been properly updated to include the suspected new members. Can the Minister guarantee that this will not happen? It is evident that the stated aim of ensuring public confidence in the status of union registers is already adequately addressed by the current system, which gives members the power to challenge registers at any time and requires the appointment of independent scrutineers at the key points when ensuring accuracy of the registers is important. Introducing wide-ranging powers of investigation by Government bodies and third parties that do not owe any duty of confidentiality to trade unions, coupled with a second layer of external auditing, is surely an overly intrusive measure, which will have an unwarranted detrimental effect on the members’ trust in the confidentiality of the union registers. These measures clearly go beyond what is necessary and proportionate to achieve any legitimate aim behind the proposals, if indeed there is one at all, and may constitute a breach of Article 11 of the convention.
It should be remembered that the Government are introducing this series of measures at the same time as the full extent of the scandal of blacklisting in the construction industry is gradually coming to light. This is by no means the only industry in which members of a union may wish to keep their membership confidential for fear of being subject to discrimination. On another Bill, the Minister was forthright in his condemnation of blacklisting. Does he not recognise the possibility of double standards here? Will he comment on that?
My Lords, I will now respond to the group of amendments tabled to Clause 37, focusing on the role of the independent assurer, their appointment and removal, and the assurance process. I will deal with the question that the clause stand part of the Bill at the same time.
The Bill will provide greater visible assurance of the maintenance of trade union membership registers to members, employers and the wider public. Clause 37 gives credibility to that assurance by requiring independent scrutiny. Increasingly, a number of unions have become large organisations, serving a membership that frequently covers a variety of employers and workplaces. With this comes administrative complexity, as well as increased public interest in a union’s scope of influence. The nature of union membership data means that they decay easily, as has been mentioned. It is reasonable to think that someone moving house might forget to notify their union, for example. This is recognised in the existing duty for a union to maintain an accurate membership register,
“so far as is reasonably practicable”.
Unions currently provide assurance in relation to financial matters. Their accounts are given credibility as they must be validated by an auditor. I believe that when in future a large union provides an annual membership audit certificate assurance, it should constitute a similarly independent assurance. Clause 37 therefore requires trade unions with more than 10,000 members to appoint a qualified independent person—an assurer— who will issue the annual membership audit certificate, stating whether the union’s membership system complies with the duties set out in Section 24. The assurer owes a duty to the union to provide the certificate and to carry out inquiries as necessary. They have the right to access the membership register and other relevant documents, and to require information from the union. Exactly which information may be relevant will vary between individual unions. It will be for the union to agree terms with the assurer. Clearly, the union does not have to provide information to the assurer unless it is relevant to the register of members’ names and addresses.
Amendment 118E is one of several amendments that reflect concern regarding the handling of union member data. The Government understand the sensitive nature of union membership data, and have ensured that there are legal safeguards in place, both through existing legislation and introduced by the Bill, to protect them. I therefore hope that I can reassure noble Lords that their concern here is misplaced. The assurer will not be able to provide assurance of a union’s compliance with the duty in Section 24 without access to the membership register. However, this access is subject to existing legal protections, as well as additional safeguards in the Bill.
The amendment would make the assurer owe a duty of confidentiality to the union and its members, and would require the assurer to comply with the union’s obligations in the Data Protection Act. The amendment is unnecessary. The assurer will already owe a contractual duty of confidentiality to the union, as stipulated in the Bill. The assurer is prohibited from disclosing member data unless in specific permitted circumstances. Furthermore, the Data Protection Act will apply because the assurer, in performing their statutory functions, will be a data controller under the Data Protection Act.
I know that the noble Lord, Lord Whitty, has a lively mind, as he chose to provide his own definition for the assurer. If I read him correctly, it was perhaps someone from an insurance background who came to knock at your door—or perhaps someone in a tea-break TV programme. However, I will attempt to clarify the role of the assurer. It is essentially to give an assurance. It is important that the assurer has widespread credibility with unions, their members and the public. They will therefore be an independent and expert third party and the Secretary of State will make an order setting out either which organisations are eligible or listing the criteria that must be met for a person to be able to act as an assurer.
At the moment we anticipate these to be recognised professionals such as solicitors, auditors, or independent scrutineers. In discussions with unions and others during the summer, there was general agreement to these professionals. This is similar to the existing system for scrutineers. Currently scrutineers, which are eligible to oversee ballots carried out by trade unions, are listed in an order made by the Secretary of State. In the other place, the Minister for Employment Relations and Consumer Affairs committed to consult on the order setting out who would be eligible to be an assurer. Clause 37 provides an order-making power for the Secretary of State to set out who is qualified to be an assurer. A person is disqualified should their independence or capability be questionable. However, beyond these conditions it is for the union to appoint an individual and define their contractual terms. Union rules will need to be amended to include provision for appointing and removing an assurer.
Amendment 118F would remove the provision for individual unions to define in their rules a process for the appointment and removal of an assurer. The intention appears to be to require unions to comply with specific requirements similar to the appointment of independent scrutineers. This would significantly limit the discretion afforded to unions in their compliance with the new requirements. The amendment would also remove some of the minimum requirements in the clause for the appointment and removal of an assurer. The Government’s approach is to allow individual unions the flexibility to identify the best process for the appointment and removal of an assurer. This reflects the unique nature of trade unions and the fact that they vary hugely in size, type and complexity.
The minimum requirements set out in the clause are to protect the longstanding principle that unions are accountable to their members—a principle which has been supported by all sides during the progress of this Bill. The Government believe that it is important that the removal of an assurer is by a resolution of the union’s membership or delegates.
The clause also provides an exemption from the requirement to appoint an assurer for newly created unions and those with 10,000 members or fewer. For larger unions, it is appropriate that a credible independent assurance is obtained. However, we are anxious not to prohibit the creation or existence of smaller unions, and this is one of the key ways in which we are ensuring an appropriate implementation of the Government’s overarching policy objective.
Amendment 118G is another that reflects concern about the handling of sensitive data by the assurer and is intended to test the strength of the provisions for protecting this. The amendment would prevent the appointment or reappointment of an assurer in the case of a breach of the union’s confidentiality, a breach of their statutory duties or terms of appointment, or where there are reasonable circumstances not to reappoint. I agree with the importance of rigorous safeguards with regards to the handling of union data and with the view that an assurer who has breached these obligations must not be reappointed. However, the amendment is unnecessary as this is already achieved by current legislation and the Bill as drafted.
First, the Secretary of State will define who is qualified to be an assurer. Secondly, the union will have discretion both to select the assurer and to define the detailed terms of their role. If for any reason the union has doubts about the assurer’s suitability for the role, including their handling of sensitive member data, it can pass a resolution to remove the assurer.
Amendment 118H examines the nature of the assurance and effectively raises the level of the test that is assessed. Instead of giving an opinion on whether the union’s systems for maintaining the register are satisfactory, it requires the assurer to state whether the union is compliant with the duty in Section 24 to maintain a register that is accurate and up-to-date.
I understand that noble Lords may be keen to explore the assurance process further. The Government, while allowing unions flexibility to define this, are also keen to support a smooth transition and will therefore produce guidance. However, I am concerned that a consequence of the amendment would be to make the assurance process far more costly and onerous to the union, both in terms of the role of the assurer and in the test that the union must meet with regards to its register. A systemic assessment is the appropriate and desirable approach. The appropriate method for assessing the maintenance of membership records will differ hugely between a narrow, sector-specific union with 15,000 members, such as the British Airline Pilots’ Association, and a union with a million members across a range of employers and job types.
In practical terms, I envisage that the assurer will need to understand how the records are compiled stored, and updated. Specifically, they may look to establish whether the union collects the data accurately from new members, reminds members to keep their addresses up-to-date, makes it easy for members to do this and updates the register promptly once changes are notified. We also expect that an assurer will be interested in the data-cleansing processes that larger unions use for electronic databases. Some assurers may also choose to undertake a number of spot checks of the accuracy of a proportion of member entries. However, we have not specified this detail in statute because the requirements will vary between individual unions.
It appears that Amendment 118J is designed to ensure that a union will not be held accountable for inaccuracies that were outside of its control. The amendment would create an additional element of the membership audit certificate, requiring the assurer to state whether, in the assurer’s opinion, the employer had shared “timely and accurate” details with the union and whether,
“any other aspects … have been out of the control of the trade union in the maintenance of the membership register”.
This amendment is unnecessary for achieving the intended outcome. The existing duty to which the new provisions relate is for unions to maintain a register that is accurate and up-to-date but only “so far as is reasonably practicable”. This reflects the fact that it is impossible for union records to be 100% accurate all of the time. I am also concerned that this amendment could potentially increase the costs of assurance for the union by adding to the role of the assurer in this way.
Amendment 118K would limit the assurer to only being able to require information from the union’s data controller rather than the union’s officers. The intention here is to ensure that only those who are required to comply with the Data Protection Act will deal directly with the assurer. This amendment is unnecessary because wherever any individual handles sensitive data they will always be required to comply with the Data Protection Act. The flexibility in the clause as drafted is necessary because the assurer may need to approach both those responsible for handling member data and those who have experience of the processes by which this is maintained in providing the assurance.
The purpose of Amendment 118L appears to be to allow the assurer to approach the employer to request information, presumably to allow for instances where the employer may hold more recently updated information than the union. As I have already stated, the union is already sufficiently protected from being penalised for errors that are outside of its control by the wording of the original duty in the 1992 Act. I therefore consider this amendment unnecessary. I am also concerned about the assurer directly approaching an employer requesting information and the risk that this allows the employer a level of knowledge about union membership that the individuals may not be comfortable with. This matter was raised earlier by the noble Baroness, Lady Drake, who is not in her place.
Amendment 118M is another example of seeking assurance that sensitive union member data will not be placed at risk. The amendment states that the assurer must comply with the Data Protection Act. As I have set out already, this is unnecessary because the assurer will already have to comply with the Data Protection Act by virtue of their role. The assurer will also be subject to the additional confidentiality provisions that are introduced by the Bill and may be subject to other contractual terms that are agreed with the union.
Amendment 118N appears intended to strengthen the steps an assurer must take to prevent the disclosure of union member details. However, I cannot see how the amendment would work in practice. It would require the assurer to take “all steps necessary” rather than “all reasonable steps”, which seems to suggest that there are some steps which would be necessary but would not be reasonable.
Amendment 118P seeks to amend these permitted circumstances by preventing the disclosure of member data in any circumstances except with their consent or where required as part of criminal proceedings. The effect would be to defeat the Government’s policy intention of giving assurance of unions’ compliance with the existing duty in Section 24. The amendment as drafted would, in practice, prohibit the certification officer, inspector or assurer having the necessary access to the register as they would be unable to identify the member in order to seek their consent.
The additional protection of member privacy that is sought by this amendment, and by many others discussed today, is unnecessary. There has been broad speculation that the provisions in this part of the Bill present a potential risk to sensitive membership data. I wish to reassure the House that this concern is misplaced. The changes that we are making are modest.
The powers of investigation introduced for the certification officer are consistent with those he already exercises in other areas, and there is no evidence of a problem here. The certification officer, the inspector and assurer will all be bound by a set of strict obligations in their treatment of union member data. Furthermore, the proposals in the Bill will not allow other parts of government or employers unauthorised access to member data.
The noble Lord, Lord Monks, raised the issue of how the new regime could be justified on human rights grounds, and I would like to answer his question. As I have said before, the existing duty to maintain an up-to-date membership register has been around since 1984. Having agreed that a membership register is necessary, it follows that there should be an appropriate and effective enforcement regime. These provisions deal with inadequacies in the existing regime. At the moment a member cannot know whether there are widespread inaccuracies in the register, and the certification officer cannot know if there are inaccuracies because the union is under no obligation to disclose documents. If there is good reason to believe that a union may not be complying with Section 24 duties, it is important that this can be properly investigated. This investigation offers protection for union members. If the union is not complying with the overarching duty in Section 24, there is also the possibility that it is not complying with other obligations regarding the handling of sensitive data.
The noble Lord, Lord Whitty, and my noble friend Lord Tyler discussed the political affiliation of trade union members. The Government’s position is very clear. We have no current plans to look at trade union legislation more widely. We have offered to assist the Leader of the Opposition with his planned reforms of union member participation in trade union political levies, if he wishes. I just wanted to make our position extremely clear on that point.
The noble Baroness, Lady Turner, said that these provisions will act as a deterrent to prospective new union members due to the concerns about confidentiality. I do not believe that the certification officer’s access to the membership register will interfere with the individual’s right to join a union. The certification officer already handles membership data under the current regime and there is no evidence of a problem with his handling of sensitive data; nor is there evidence that this has acted as a deterrent to joining a union. Protections in the European Convention on Human Rights and in the Data Protection Act will continue to apply as they do now.
I hope that in my rather lengthy response I have answered all or nearly all of the questions that were raised. I may owe the noble Lord, Lord Stevenson, some answers to his questions. I ask the noble Lord, Lord Monks, to withdraw the amendment.
I want to ask the noble Viscount two questions. He has been slightly more explicit about the role of the assurer, but why is it not possible just to add it to the role of the auditor for the trade union? I am grateful for the offer of help to sort out the Labour Party’s internal constitutional matters, but the Minister did not reply explicitly to the point I was making. I would like to have it on the record that the Government do not intend this Bill to be the paving stone for reforming political funding; that is, an attack on the funding arrangements of the major opposition party. Can we have it made clear that that is not the motivation behind this part of the Bill?
In answer to the noble Lord’s first question, I went some way forward in attempting to define what the role of the assurer will be. We have made it clear that the assurer is a new role and we should stick with that. The noble Lord’s point was that it should be commuted in with the role of an auditor, but they have distinctly different roles. The best thing is for me to write to the noble Lord to clarify the position of the assurer. I should re-emphasise that the union has a say in choosing the assurer from the approved list, which is originally approved by the Secretary of State. The role is currently being drafted and put together. We have some clear key powers and safeguards that are laid out as part of that role, but it is work in progress and I owe the noble Lord a letter to provide further clarification.
On his second question, I do not wish to go any further—and there is no need to go any further—other than the reply that I have given him. I hope that it has reassured not only the noble Lord but noble Lords opposite in terms of the position.
We have had a very clear statement from the noble Lord, Lord Tyler, about what he thought this Bill was about. If the Minister cannot give a specific answer to the question of the noble Lord, Lord Whitty, will he turn to the noble Lord, Lord Tyler, and give him a straight rebuttal of what the noble Lord alleges?
I intend to stick exactly to what I have said.
I apologise to my noble friend for quoting at such length the comments in the summer of the leader of the Labour Party. The Labour Party and its leader will benefit considerably if this part of the Bill, in whatever form, is enacted as there will then be a much more secure and robust form of record of all the membership of the unions. That is the point I was making.
I thank the Minister for that disappointing reply and the noble Lord, Lord Tyler, for introducing an element which has not calmed or reassured anybody on this side of the House about the Bill. We thought that landing extra red tape on the unions was just an administrative muddle with a bit of political spite. Clearly, at least some on that side of the House have other motives in mind. It is rather difficult to follow the track. The Minister shakes his head, but that is not what he said. He had the chance to rebut the noble Lord, Lord Tyler, who introduced the party political funding item into this debate, and he has not done so. He had a chance to play the role of an assurer: he could have been a pioneer, but he blew it when he had that chance.
The Minister may have reassured some people. Employers must be fairly pleased. They will not be asked for any information. A big firm employing lots of people can screw up a payroll and so on. I see the noble Baroness, Lady Neville-Rolfe, in her place. Tesco has 140,000 USDAW members. I am not saying that Tesco would have screwed up a payroll, but if it did and somebody went to the assurer, it could not even be asked to provide information. The union will be the one in the dock.
Let us not pretend that this is some sort of friendly exercise, just tweaking the quality of union administration and helping people to get their records rather better when they are organising a construction site or when they are at the rough end of the retail industry. This is not about that at all, as the terms, to which we have drawn attention, on which an assurer can be got rid of involve going to the annual general meeting or a conference. It is almost as though this is a conflict and the assurer needs to be protected against what a normal auditor would be subject to, which is being fired by the decision of the board or, in the union case, the executive. The assurer is being protected on the suspicion that this person will be in conflict with the union.
That might be a reasonable assumption to make. The noble Lord, Lord Tyler, asked why people should be worried about it. It is because it will mean the job having to be done twice. Furthermore, he is an outside person who will get access to union membership records. The union prizes those records as well as their confidentiality. I will not press my amendment today. I will withdraw it, but noble Lords have not heard the last of this.
Amendment 118E withdrawn.
Amendments 118F to 118P not moved.
Clause 37 agreed.
Amendments 119 to 137 had been renumbered starting at Amendment 157.
Amendments 138 to 140 had been withdrawn from the Marshalled List..
Amendments 141 to 143 had been renumbered starting at Amendment 181.
Clause 38: Investigatory powers
144: Clause 38, page 43, line 18, leave out from “union” to first “to” in line 19
My Lords, this group of amendments covers similar territory to the previous debate, so I shall not go over all that ground again. The amendments continue to emphasise the extent to which the Bill engages with both Articles 8 and 11 of the European Convention on Human Rights and EU and UK data protection requirements. Amendment 144 limits who can be directed to comply with requests from the assurer. We emphasise the need to do that centrally rather than it being done by some voluntary branch secretary or district office. The responsibility should be at head office with the person who controls data.
Amendments 147 and 150 would allow an inspector to request information from employers. We have just been debating that important issue, which employers are hiding from. I do not see how an assurer could do his job properly without that kind of right. Amendment 151 aims to ensure that the inspector owes a duty to the trade union that is employing him or her, as well as to the certification officer, especially not to breach confidentiality. The amendment seeks to disqualify from acting in this role an inspector who commits breaches. Amendment 152 again tightens the parameters of what an inspector has to do to maintain confidentiality—not just to take all reasonable steps but to take all steps necessary. Without being repetitious, I beg to move.
My Lords, I have four amendments in this group that relate to roughly the same territory—Amendments 145, 146, 148 and 149. In the previous clause we were concerned about the access of the assurer and those who approach the assurer to the membership records of a trade union. My amendments relate to the certification officer and the inspectors, or staff, of the certification officer.
Obviously, when there is a complaint from a member about the way in which his records have been dealt with, the certification officer or his agent needs to be able to look at that part of the records. However, the totality of the records of the trade union needs to be protected in almost all circumstances. My amendments propose that the documents that can be demanded by the enforcement authorities will not normally include the complete register of members.
On earlier amendments, my noble friend Lady Drake and others emphasised how important this is to civil liberties. When you are organising a trade union against employer hostility and the employer can go to the authorities to find out who in his workforce, or which potential recruits into his workforce, are members of a trade union, that is a serious restriction on the right to join a trade union with no detriment.
Taken one stage further, this relates to the issue of blacklisting. It has probably been a serious underestimate that some 2,000 people have been blacklisted over the years through the mechanisms established by certain companies in the construction industry. If all that the employers needed to do was get sight of a list of registered members of a trade union, or if there was a requirement after a third-party complaint for the certification officer to produce that list, the incidence of blacklisting would go well beyond the confines of the construction industry and the other areas where historically it has applied.
There is an important civil liberties, human rights and data protection issue here. I seriously counsel the Government to look again at the provisions here and to build in some safeguards themselves. The last thing that they want to do, I should have thought, would be to transgress data protection provisions. I hope that they would not wish to transgress the European Convention on Human Rights or the ILO conventions on the freedom to organise, join or not join a trade union. Yet these provisions in this part of the Bill and the role of the assurer move in that direction, and we need far firmer protections than are in the Bill to ensure that that is not exactly what will happen.
I know that the Government sometimes appear to be pretty nonchalant about international obligations to the EU and the convention on human rights. However, I hope that in the area of employee protection this is not a policy emanating from the heart of government that states that these things do not matter. Protection from abusive employers and others over the right to choose whether to be a member of a trade union must be stated clearly in law. If the law is moving in a different direction to a new form of regulation, as this Bill purports to try to do, those protections need explicitly to be built into the legislation.
As my noble friend Lord Monks said, there are lawyers who say that the form of words in the Bill runs into difficulties on both the human rights side and the ILO convention side. I have no doubt that the Government could find a lawyer who would say the opposite. You can always find another lawyer, but as this is grey territory in which the Government could find themselves, instead of being a beacon for democratic and human rights, condemned in the councils of the world for breaching them, given that we are preaching democracy and freedom of association to less well favoured regimes in other countries.
I am not saying that the Government have yet got into that territory, but they are pretty close to it, and I hope that before the Bill disappears from this House we can see—from the Government preferably—some protections in this regard, not simply airy-fairy assertions that the Bill does not conflict with human rights legislation.
Will my noble friend comment on the dangers of blacklisting? An investigation carried out in Scotland by the former MP for Maryhill, Maria Fyfe, uncovered a list of people who were blacklisted. Among them was my name. I know that that might sound a bit ridiculous now, but that could have affected my employment and public record. Does my noble friend accept that it is quite right to emphasise the dangers of blacklisting?
Indeed, my Lords. The Scottish Affairs Committee in another place have performed a very good task in bringing this issue to light, but we have not seen everything; a lot of names on those lists were destroyed. Among them were people who some of us on this side knew, including my noble friend who obviously chose a change of career at just the right point. So far, at least, he has not been blacklisted from being a Member of either House of Parliament. This matter does not affect just some lunatic subversives out there; it can potentially affect solid citizens trying to conduct their trade, such as my noble friend in his earlier existence. This is a threat to liberty and freedom of association, and a threat to the Government’s reputation in the councils of the world. Please take this seriously.
Perhaps I may mention in this connection the comment of the Royal College of Nursing—a union that is not normally associated with industrial difficulties. However, it states:
“Both the Government appointed Certification Officer and the Government approved Assurer would have powers to access unions’ membership records. In addition, the bill also proposes that any third party would be able to lodge a complaint about union membership—there is a potential for this to be abused during periods of industrial dispute. A complaint would be considered by investigators who would, in turn, also have access to union membership records. These proposals pose a serious risk to confidentiality of trade union membership and place undue bureaucratic and costly burdens on trade unions”.
I thought that it would be good to place on the record that comment from the Royal College of Nursing.
My Lords, this group of amendments is different from the others we have considered this evening because it does not contain a clause stand part. The reason for that is because we think, certainly in relation to the ones in my name and that of my noble friend Lord Monks, that they are sensible safeguards and measures that we would recommend to the Government as being appropriate and proportionate in relation to the aims set out for the Bill. I gather from the remarks made by my noble friend Lord Whitty, and to a certain extent from those made by my noble friend Lord Lea that they shared this approach. So we are not, in this mode, trying to be as aggressive—as it could perhaps be considered—in relation to the Bill as we were in Clauses 36 and 37.
That does not remove from our side the feeling that these provisions are still aimed in the wrong direction, and that they lack a sensible underpinning in terms of public policy and have not been properly consulted on. However, in relation to the generality of the proposals, there is a case for the Government to move a little way towards us. I suggest that even if they cannot accept every one of the points made in this group, they might consider taking them back and reconsidering them. That would certainly give us a little more confidence that they were taking us seriously in these debates rather than simply retreating into the rather partisan approach that has been evident so far.
The underlying concerns that have been mentioned by noble Lords about blacklisting are important. It was perhaps unfortunate that my noble friend Lord Whitty referred to my noble friend Lord McAvoy as a solid citizen because that would in no sense reflect on his ability to do the work that he was no doubt being considered for before he was unfortunately blacklisted. I jest of course—I think. The point is well made. This is not something that is happening over there and far away. This is happening to real people in real time and it is affecting lives and blighting careers. Its cause is largely due to the circulation of lists, and therefore, by following back that logic, it is something that we are very concerned about. Everyone should be concerned about that and we should do everything in our power to make sure that datasets of the type that could cause solid citizens to be affected are protected in a way that allows them to be kept as close as possible to what is required and necessary so that they are not in any sense open to the risks mentioned during this debate.
We do not have any particular issues that make one point more than another, but it is important to recognise that for many years this country has been proud of its effective and well working relationships between unions and employers. We want to see them continue. As I have said, it is an important part of the contribution that can be made by industry and also by those working on the services side towards economic growth. While we object to the measure before us in general terms, we think it could be strengthened if it has to be turned into law, and these amendments are therefore recommended.
My Lords, at the outset I want to address the issue of blacklisting that was raised by the noble Lords, Lord Whitty and Lord McAvoy, as we take any allegations of blacklisting very seriously. It is unlawful under the Trade Union and Labour Relations (Consolidation) Act 1992 to refuse to employ a person because they are a member or not a member of a trade union or because they refuse to join or leave a trade union. It is equally unlawful for an agency to refuse employment services on those grounds.
In 2010, in response to the Consulting Association blacklist uncovered in 2009, the Government strengthened anti-blacklisting legislation and increased the penalties for unlawful processing of data. Data controllers can now be fined up to £500,000 for serious offences. Despite several allegations of new evidence of blacklisting, to date we have seen no evidence of this practice recurring. As noble Lords will know, the Scottish Affairs Select Committee and the Information Commissioner are both currently investigating the potential for ongoing offences, and the Government continue to take a close interest in this issue. I thank noble Lords for raising this particular point.
Let me now turn to the individual amendments that have been proposed. Amendment 144 seems intended to prevent the certification officer and any authorised person from being able to require any branch or section of a trade union from supplying relevant documents. Even if the amendment had the desired effect, I do not believe such a change would be necessary or desirable. The phrase,
“a trade union, or a branch or section of a trade union”,
is used elsewhere in the Trade Union and Labour Relations (Consolidation) Act 1992, for example in the context of financial investigations. I would imagine that a union would want the certification officer to make every effort possible to obtain relevant documents. If its record keeping is decentralised, a union’s head office may not know if there is a problem.
Amendments 145, 146, 148 and 149 are probing the protections for unions with regard to the new investigatory powers of the certification officer and any inspectors he may appoint. These amendments all seek to restrict access to a union’s register of member names and addresses. Clause 38 gives the certification officer the power to require a union to produce relevant documents where he believes there is good reason to do so. If the certification officer has appointed an inspector to investigate, the inspector can also require documents relevant to the investigation. In both cases, “relevant documents” is defined as including a union’s register of members’ names and addresses.
Noble Lords are proposing instead that “relevant documents” should “not normally include” the register. They go on to propose that production of the register may be required by the certification officer only where the High Court has concluded there has been a criminal offence, a breach of human rights, or substantial danger or damage to third parties or to national security. The noble Lords also state that the registers shall not be available to third parties. This represents a significant set of constraints. I fully understand the concerns driving the amendments. Sensitive data on who is a member of a trade union must not be treated lightly, but I hope that I can offer reassurance about the legislative protections already in place, as well as those included in the Bill.
In the first place, however, I need to be clear that access to the register by the certification officer or his inspector is an essential requirement of providing assurance. Establishing compliance with the legislation would be impossible without either the certification officer or the inspector being able to exercise a right to access the register itself. Without this, they are wholly reliant on what the union tells them. This is inadequate in circumstances where there is reason to believe there is a problem. Access to union membership data by third parties is something that already occurs. Both the certification officer and independent scrutineers, who are responsible for ensuring the propriety of ballot processes, often need access to membership data, but there is no suggestion this has led to any misuse.
Let me explain what protections are in place. The certification officer is an independent officeholder. He is also under a duty to exercise his powers consistent with rights conferred by the European Convention on Human Rights, including the rights to privacy and freedom of association. The certification officer is well placed to deal with sensitive data and there have been no problems in the history of the office of which we are aware. The Data Protection Act also applies to the certification officer and his inspectors so that they will be required to use any personal data, including data on union members, consistently with the protections it contains. The Information Commissioner has powers to enforce the data protection principles and can impose substantial fines for some breaches.
Amendments 147 and 150 would specifically allow the certification officer or his inspector to require names, dates of birth and national insurance numbers held by the employer to allow for cross-referencing to complete an investigation. It is not clear why the certification officer would need to request this information or why the inspector would require it. None of the comments we received during our targeted consultation over the summer suggested that this information was necessary. In practice, the duties under Section 24 of the 1992 Act do not require the union to keep members’ dates of birth or, indeed, national insurance numbers. More importantly, this could have the unintended consequence of widening the scope of sensitive information handled by the certification officer and the inspector for no particular reason. There is no reason why they should automatically have access to dates of birth and national insurance numbers during an investigation. Nor is there any reason why they should be able to require it from an employer.
Amendments 151 and 153 share a common goal of ensuring that there are appropriate protections to ensure that the inspector handles sensitive membership data properly. I will therefore speak to them together. I would like to reassure noble Lords that there are already strong safeguards in place to ensure that union membership data will not be compromised by an inspector’s investigation. The certification officer will use his discretion to appoint an inspector—as he does at the moment for inspectors appointed to investigate a union’s financial affairs. It will be for the certification officer to ensure that he appoints someone capable of fulfilling their responsibilities. The inspector will owe a duty of confidentiality to the certification officer. Extending that duty of confidentiality to the trade union could have the unintended consequence of interfering with the independence of the investigation.
Should the inspector breach the duty of confidentiality owed to the certification officer, it will be for the certification officer to decide how to deal with this. The officer will want to consider the circumstances and severity of the breach to decide what is appropriate. For example, if the inspector is a member of the certification officer’s staff—as they could be—the certification officer will have a range of options, from retraining to dismissal.
A third party appointed as an inspector is likely to be someone in a professional firm. It would seem unnecessarily restrictive to require that the certification officer could never appoint that firm again, no matter what happened to the individual concerned.
Will the Minister respond to what many on this side have been driving at? Both in the retail sector and the construction industry there is widespread use of casual and agency workers. Obviously, the employer knows who the workers are. Unions, in recruiting members to represent them, have great difficulty in getting data on who is employed, who is on sick leave and so on, so the word “reasonable”, which we understand to be used for the new union audits, should be constructed on the premise that there must be a level playing field.
I assume that that was a specific question relating to contractors. I hope I have got that right. If the noble Lord’s question was broader than that, I pledge to write to him to clarify the position.
It would seem unnecessarily restrictive to require that the certification officer could never appoint that firm again, no matter what happened to the individual concerned.
In addition, if the appointed inspector—or any other individual, for that matter—has breached data protection rules by mishandling personal data, the union may apply to the Information Commissioner, who enforces the Data Protection Act. The Information Commissioner has a range of powers at his disposal, including imposing a fine of up to £500,000. I therefore believe that the amendment is unnecessary.
Amendment 152 would change Clause 38 so that the inspector appointed by the certification officer to investigate discrepancies would also have to take “all steps necessary” to protect a member’s name and address, instead of “all reasonable steps”. I find it difficult to see what the amendment achieves in practice. The assumption appears to be that there are steps that might be necessary but are in practice unreasonable. I consider “all reasonable steps” to be sufficient.
I hope that the noble Lord will feel able to withdraw his amendment.
My Lords, I thank all noble Lords who took part in the debate. As the Minister gave his assurances about how seriously the Government take blacklisting, which has been so interestingly revealed recently, not least by my noble friend Lord McAvoy, I was minded that we might have found an actual role for an assurer. That is an assurer whose job it is to try to make sure that people in the construction industry are not blacklisted. Despite the increase in fines, the issue is finding out what people are doing. Somebody who went in to have a look at payrolls, private e-mails, and so on, could probably find that out.
That is a problem that the Minister acknowledges exists. We have not got a problem in the area of union membership and union membership records—or not one that is easy to do very much about, particularly in industries that are casualised. I will just say that the nature of the assurer in the union context is almost, “I’ve got to be reassured that your systems are okay”. That will be a rather adversarial position; not a consensual one, as the Minister is presenting it. It will be adversarial, especially when people are not exactly sure what will happen to the information. Why do they need that information if there is no trouble and no complaints?
The Minister’s point is that the certification officer and the scrutineer have access, so why not an assurer? The difference is in the nature of the relationship. The assurer would have a much more adversarial position than the one that those two have. Essentially, the assurer is saying, “I don’t really trust your records until I have had a very good look”. That is our major problem with it.
I will withdraw the amendment, but we will no doubt return to the matter later in our proceedings.
Amendment 144 withdrawn.
Amendments 145 to 153 not moved.
House resumed. Committee to begin again not before 8.36 pm.
New Psychoactive Substances: EUC Report
Motion to Take Note
That this House takes note of the Report of the European Union Committee on the Commission proposal for a Regulation of the European Parliament and of the Council on new psychoactive substances (COM(2013)619, Council Document 13857/13) and on the Commission proposal for a Directive of the European Parliament and of the Council amending Council Framework Decision 2004/757/JHA of 25 October 2004 laying down minimum provisions on the constituent elements of criminal acts and penalties in the field of illicit drug trafficking, as regards the definition of drug (COM(2013)618, Council Document 13865/13) (6th Report, HL Paper 73).
My Lords, in moving the Motion in my name, I invite the House to endorse the proposal of the European Union Select Committee that a reasoned opinion should be issued concerning the European Union Commission’s proposals to regulate new psychoactive substances.
Those proposals were considered in depth by the EU Sub-Committee on Home Affairs, Health and Education, which I have the honour to chair, during October this year. We took evidence from the Minister of State at the Home Office, Mr Norman Baker, on 16 October. We have concluded that the proposals do not comply with the principle of subsidiarity.
New psychoactive substances are natural or synthetic substances that act on the central nervous system and modifying mental functions in similar ways to illicit drugs such as cocaine and amphetamines. They are often referred to as “legal highs”. As many Members noted in the debate in this House on 17 October in the name of my noble friend Lady Meacher, when we debated wider issues of drugs policy, new psychoactive substances have the potential to pose serious risks to public health and safety. Despite often being marketed as legal alternatives to illegal substances, users can have no certainty as to the health risks that can arise from using them, nor the legal status of those substances.
Our report does not comment on the merits of policies to ban, regulate or permit the new psychoactive substances. We have not dealt with that wider issue. Debates about that are going on in many countries around the world and around Europe, and will continue to do so as the ingenuity of scientists leads to the production of new substances. In this debate, and in this Motion, we are concerned with who should have the power to ban those substances and why. On 20 September, the European Commission published proposals for a directive and a regulation with the stated aim of improving the functioning of the internal market regarding the legal use of new psychoactive substances. It argues that many new psychoactive substances that are used recreationally have, or could have, various uses in industry which are hindered by market restrictions. The Commission considers that member states alone cannot reduce the problems caused to the internal market, given their divergent responses to new psychoactive substances. It also argues that EU-level action is necessary to ensure that potentially harmful new psychoactive substances can be identified, assessed and, if necessary, withdrawn quickly from the market across all member states.
The committee shares the Commission’s concerns about the risks of harm posed by these substances to the health and safety of EU citizens. In our 2012 report, The EU Drugs Strategy, we concluded that the EU has an important role to play in strengthening and adding value to the actions of member states in tackling the negative effects of these substances. However, we concluded then, as we do now, that action to deal with them is best taken in the first instance by member states. We part company from the Commission when it proposes to take that responsibility for taking such decisions away from member states, and transfer it to the Commission itself. In our view, the two proposals include some provisions which are best left to member state action, and so are not consistent with the principle of subsidiarity.
The proliferation of new psychoactive substances is influenced by regional, national and international forces. These manifest themselves quite differently in different member states, depending on the speed at which the substances become available and the severity of their impact on public health. In any case, member states have different systems for dealing with harmful drugs in general, and for addressing new psychoactive substances. They require flexibility to respond rapidly to local situations. Therefore, member states are best placed to decide how to respond to the proliferation of these substances in the manner that best fits the circumstances in their jurisdictions.
This would not—and I underline this point—preclude EU-wide action being taken by the Council with respect to a particular substance or group of substances, if the Council felt that such general measures were needed across the European Union. We support those parts of the proposals that would strengthen the roles of the European Monitoring Centre for Drugs and Drug Addiction and of Europol in the process of analysing and dealing with the risks from new psychoactive substances.
I should add that we received evidence from the Government that leads us to conclude that the legal trade in psychoactive substances—which is the reason given by the Commission for basing these proposals on single market provisions—is not in fact large enough to justify the Commission’s view that its proposals are needed to protect the single market. We therefore concluded that, in addition to our concerns about subsidiarity, the measure was in any case disproportionate, although there is no formal reference to that point in the reasoned opinion, which is of course about subsidiarity alone. The House of Lords EU Committee therefore does not agree that these matters justify transferring member states’ decision-making power in respect of new psychoactive substances to the Commission. I beg to move.
My Lords, it is a pleasure to follow the noble Lord, Lord Hannay, as it is to serve under his chairmanship on your Lordships’ EU Sub-Committee F, which produced the report which forms the basis for this debate. New psychoactive substances, or so-called legal highs, continue to be a serious concern. Not only are many of these substances very dangerous, but more of them are invented and marketed throughout the world every year, which of course includes within the EU. The number of new psychoactive substances detected tripled between 2009 and 2012. The EU Commission reported in September that so far in 2013, more than one new substance has been reported every week.
This is a matter for urgent concern and urgent action, because many of these new substances may well turn out to be very dangerous. Every week, the UK news media report tragic stories involving the use of these substances. Three weeks ago, the Daily Mail reported the case of a 20 year-old boy from Gravesend who died within hours of taking a legal high. He was found next to a plastic bag from the legal high shop, UK Skunkworks. A teenager in Southampton died in August after taking alpha-methyltryptamine. There are many similar stories. These drugs are generally easy to get hold of, both on the net and on the high street. The Sunday People reported last month that UK Skunkworks, a retailer of legal highs, now has 21 shops in the UK, including one in Maidstone which is situated next to a drug rehab charity.
The problem of legal highs is of particular concern here in the UK. Britain accounts for nearly a quarter of Europe’s entire legal high market, compared to France at 14% and Germany at 12%. There are drugs which are common here in the UK that are rare elsewhere in the EU, and vice versa. As the noble Lord, Lord Hannay, said, in general the market for these drugs is characterised across the EU by rapid innovation locally, and by differing levels of the presence of different drugs in different member states.
The EU already has in place a mechanism for dealing with and banning new psychoactive substances, but this mechanism is widely acknowledged to be cumbersome, slow and not especially effective. The new regulation proposed by the EU is intended to replace this with an improved version, but we already have an improved version in operation in the UK. Here, Ministers are able to issue temporary class drug orders, which ban a drug for 12 months to allow the Advisory Council on the Misuse of Drugs to report on whether a permanent ban should be put in place.
We already use this mechanism to react very quickly to the appearance of new, worrying legal highs. In the past 12 months we have used this power to ban substances called NBOMe and Benzo Fury. We also now control mephedrone, naphyrone, BZP, GBL and synthetic cannabinoids. These were all previously legal highs. All of this is driven by the Home Office forensic early-warning system, which has the job of identifying early new psychoactive substances which are potential threats. In fact, in the past year the forensic early-warning system identified 10 new psychoactive substances not previously seen in the UK and, importantly, not present elsewhere in Europe. Of course, here in Britain we also have an extensive education programme aimed at alerting people to the dangers of the drugs that are found here. The Government deserve particular praise for their 10 year-old “Frank” programme, which has a new advertising campaign beginning in January.
The question we are addressing this evening is whether we should give up control of our system of policing and controlling new psychoactive substances, which works well, and hand it over to the EU. There is no compelling evidence to suggest that this would be a good or even a sensible idea. The new EU regulation proposes a power to impose a temporary measure, restricting new psychoactive substance sales for a year, to be introduced within weeks of an alert. We already do this, and we can do it when the problem is not present elsewhere in the EU. The new EU regulation proposes permanent measures that can be introduced within 10 months to restrict the sale of new psychoactive substances to consumers. We can already do this, too. Again, we can do this for substances that may not yet be present in the rest of the EU.
The new regulation simplifies the existing EU procedure, but the new procedure will still be relatively slow and complex. According to the EU’s own description of the procedure, a substance must raise concerns across the Union before EMCDDA and Europol draft a report on the substance. On the basis of this joint report, the Commission then decides whether there are grounds to require a fully fledged risk assessment. This is too slow, too complex and too coarse-grained, and it is not necessary here. We already do better than this. This would certainly not help, and would in fact be a retrograde step. Giving competence to the EU, as in the proposed regulation, would add nothing at all. The proposal fails the test of subsidiarity, which is why I strongly support the Motion to issue a reasoned opinion to that effect.
My Lords, I shall speak to the Motion to Take Note concerning the proposed directive and EU regulation on new psychoactive substances. The European Commission’s head of unit on anti-drug policy, Dana Spinant, sent me the draft regulation for comments some weeks ago and I want to put on record that views that I expressed to her.
The interest of this regulation for the APPG for drug policy reform, which I chair, follows our one-year inquiry into the supply, demand and risks associated with new psychoactive substances in the UK. In the course of that inquiry we received evidence from the Home Office, the UK Border Agency, ACPO, the ACMD, experts and front-line specialists on the subject. What was surprising was the degree of consensus about the challenge of new psychoactive substances to our country, and the fact that our current drug laws are not fit for purpose to deal effectively with these new drugs. Our report, Towards a Safer Drug Policy, sets out our conclusions, which resonate well with key points in the draft regulation. I feel bound to pick up a point made by the noble Lord, Lord Sharkey, who said that our laws are working well. The reality is that all those experts, whether they were from the Home Office, ACMD or the UK Border Agency, were clear that our laws are not working well and are not fit for purpose. They were not designed for this kind of problem at all, so we have to take that on board.
I welcome the comments of my noble friend Lord Hannay that the aims of the proposed directive and regulation are laudable. I also welcome his recognition that the EU has an important role to play in helping to tackle the problems presented by new psychoactive substances—or NPS, if I may call them that. The fact is that we cannot deal effectively with these drugs at a national level. I note that the EU committee does not support acceptance of the regulation on the grounds that flexibility will be important, but I would like to put on record reasons why the thrust of the regulation should be supported even if the proposed status of regulation might be rejected. I will comment on just three issues: first, the consultation undertaken before producing the draft regulation; secondly, the role of the EU in assessing new psychoactive substances; and, thirdly, the focus on the supply side of the market.
The Commission has undertaken an incredibly widespread consultation, as we did in our inquiry, to ensure that the draft regulation reflected people’s views— that is, experts’, doctors’ and scientists’ views. Large numbers of member states view the lack of alternatives to control and criminal penalties in the current instrument as inadequate and suggest that a wider range of options should be considered, backed by the administrative law. Obviously, that is for the lower-level substances. This is something that the All-Party Parliamentary Group on Drug Policy Reform agrees with most strongly. The fact is that bans and criminal sanctions are not effectively stemming the flow of new psychoactive substances into Europe, nor indeed into the UK. Of course, the UK has a problem with NPS twice the average for the European Union. We are the leaders in this field. This is where the drugs come from China and India before flowing across Europe.
The Commission’s impact assessment concluded that,
“a more graduated and better targeted set of restriction measures on new psychoactive substances”,
would be preferred. Its rationale is that if low-harm, properly labelled substances were available for young people to take and if it was clear what those substances were, with their risks and so on, those people might be more likely to avoid the much more dangerous substances, which would need to be banned. Some warned that blanket restrictions on entire groups of substances could have adverse effects and that restriction measures should be proportionate to a better determined level of risk of substances. All the evidence presented to our APPG on Drug Policy Reform’s inquiry supported these views from the EU. All the experts were saying that we need a proportionate response and a risk-based policy.
The main adverse effects of punitive measures are familiar to us. First, there is the displacement of one set of drugs by new substances that are possibly even more harmful. Indeed, they are more harmful because they are even less known. When something just arrives from China, you have no idea what it is. As we ban one, along comes another, or maybe another two. Secondly, rendering such substances inaccessible for research and legal commercial activities presents major problems.
I turn to information gathering and exchange, and the assessment of risks of new psychoactive substances. The European Monitoring Centre for Drugs and Drug Addiction was established by regulation in 2006 and has done an excellent job in generating information about drugs and drug use across the EU. The proposal for a regulation on NPS makes it clear that the EMCDDA should have a central role in the exchange of information on NPS and in the assessment of the health, social and safety risks that they pose.
The APPG’s inquiry panel was very concerned that our Advisory Council on the Misuse of Drugs has the resources to undertake risk analyses on only two NPS per year. With about 70 new substances due to come into this country in 2013, clearly we are completely losing the battle. If all EU countries contributed to resourcing the EMCDDA—which to an extent they do already, but clearly it needs more support—it could then co-ordinate this work on behalf of all, avoiding duplication. More substances would be analysed and sensible policy decisions could then be made based on the risk analyses that might be undertaken, two per country, across the EU. We would then be beginning to tackle the problem. As the European Commission proposal makes clear:
“Any Union action on new psychoactive substances should be based on scientific evidence”.
That has to be the fundamental principle behind our policy but while we have no resources to provide the scientific evidence, we cannot have a scientific or an evidence-based policy.
My third point is on the focus of the regulation upon the supply side of the market. The proposal for the regulation refers to the fact that restrictive measures vary significantly in different member states. This is a major problem for legitimate economic interests. In the case of the same NPS, they have to comply with different requirements such as pre-export notifications, export authorisation or import and export licences. All this hinders the functioning of the legitimate internal market for particular products which happen to have one NPS as an ingredient. New psychoactive substances should be able to move freely within the Union when intended for genuine commercial purposes, as well as for scientific research. The research professors who gave evidence to us were certainly worried about the control of these substances happening in a thoughtless way that was not based on evidence. At the same time, NPS that pose a medium or severe health, social or safety risk should be addressed at the Union level by controlling the supply appropriately and fairly across the EU. I support the EU regulation for two reasons: it concentrates upon the supply side and it highlights the importance of proportionality of the response.
I end by congratulating the Government on the effective decriminalisation of the possession and use of new psychoactive substances for a 12-month period under the temporary class drug orders, which focus on the supply side. If the UK adopted the EU regulation or the ideas within it, the 12-month limit to drug orders should no longer apply. This would be a positive step forward. According to the evidence, decriminalisation of the possession and use of drugs does not lead to an increase in drug use and can lead to a reduction in drug dependence. It also has the benefit of enabling resources to be transferred from criminal justice to treatment, thus raising the prospects of people recovering and getting back to employment.
In conclusion, I respect the recommendation of my noble friend Lord Hannay that the proposed draft regulation be rejected. However, I hope that the valuable proposals in it will not be lost and will inform decisions about how the UK and the rest of Europe move forward to deal with the very real problems presented by new psychoactive substances.
My Lords, I thank the noble Lord, Lord Hannay, for his excellent exposition of this report. My noble friend Lord Sharkey has given the background in some detail. The noble Baroness, Lady Meacher, has given more qualified support.
As a relatively new member of this committee I am struck that this is a classic case of subsidiarity: where there is a clash of joint competences between the Commission and a member state, the member state should prevail. I hope that I do not put that too simply. It is also an example of proportionality. We found that the Commission’s concern about legal transmission of these substances was disproportionate. Insufficient data were produced. We therefore disagreed with the Commission on that point. My third point is that this report makes it clear, if our views are taken into account, that the member states will be dependent on the two central bodies referred to by the noble Lord, Lord Hannay, and other back-up services from the Commission.
I conclude by reminding your Lordships that my honourable friend Norman Baker, my Liberal Democrat colleague in the Commons, was fully supportive of the view at which the committee has arrived.
My Lords, I extend our thanks to the noble Lord, Lord Hannay, and his committee for their report. It contains a clear recommendation that there should be a reasoned opinion concluding that the proposed regulation and directive do not comply with the principle of subsidiarity.
As has been said, psychoactive substances are natural or synthetic substances that affect the central nervous system, and induce a stimulating or depressing effect in the same way that illicit drugs such as cocaine or ecstasy do. They are often marketed as legal alternatives to illicit drugs, which is why they are called “legal highs”. Like illicit drugs they can cause considerable harm to those who use them, including severe physical or psychological harm, or even death.
Many new psychoactive substances have or could have other uses in, for example, the medical, chemical or high-tech industries. Around a fifth of the substances notified through the EU-level mechanism of exchange of information have some other legitimate uses. New psychoactive substances are not, however, subjected to control measures under the UN conventions on drugs and are not therefore covered by a Council framework decision of 2004 on the approach to the fight against illicit drug trafficking.
However, the number of new psychoactive substances emerging and spreading increasingly quickly in the European Union is rising fast, and more than 300 new substances have been detected in Europe since 1997, with the number of substances identified between 2009 and 2012 tripling from 24 to 73 a year. The rise in the availability of such substances has led to an increase in consumption across the EU, and 80% of new psychoactive substances are reported in more than one member state.
As we have heard, the European Commission considers that the current EU instrument of 2005 on the information exchange, risk assessment and control of new psychoactive substances is unable to provide an adequate response to this growing challenge, because it does not enable harmful substances to be withdrawn from the market quickly enough, or provide a response proportionate to the level of risk involved. The Commission’s new proposals that are the subject of this report seek to establish rules for restrictions to the free movement of new psychoactive substances, and are also intended to enable quicker and more proportionate measures to be taken on such substances.
The measures proposed would be introduced within weeks in case of an immediate risk and would restrict the sale of new psychoactive substances to consumers across the EU for one year. Alternatively, they could be introduced within 10 months and would restrict the sale of a substance to consumers across the EU and, in cases of severe risk, even their use in industry. They would be directly applicable in the member states and would not need to be transposed into national law. According to the Commission, under the current system the entry into force of restriction measures takes up to 24 months.
The Commission proposal also seeks to provide for the most harmful new psychoactive substances to be covered by the same criminal law provisions as substances controlled by the UN conventions. The proposed regulation is also intended to improve the functioning of the internal market in respect of legal uses of new psychoactive substances by reducing obstacles to trade and increasing legal certainty to economic operators.
Under the Commission’s proposals the European Monitoring Centre for Drugs and Drug Addiction—the EMCDDA—would be advising the Commission to take no further action in respect of a substance assessed as low risk. We would have concerns about this, because it is not clear by which means or form of testing the EMCDDA would come to this conclusion, and how it would assess long-term and psychological harms. We do not agree with ceding to the EU powers to classify drugs, but we certainly agree with EU-wide co-operation on a laboratory with power to give advice and information, as has been pressed for by the United Kingdom Drug Policy Commission and others.
The Commission considers that its proposal is consistent with the principle of subsidiarity, because member states alone cannot reduce the problems caused to the internal market due to their divergent responses to the new psychoactive substances, and because EU-level action is necessary to ensure that potentially harmful new substances can be identified, assessed and, if necessary, withdrawn quickly from the market across all member states. The EU committee report disagrees with the Commission’s assessment that its proposal satisfies the principle of subsidiarity, which provides that in policy areas that do not fall within the exclusive competence of the EU, but where competence is shared with the member states, the European Union can act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the member states.
The EU committee, as the noble Lord, Lord Hannay, has set out, has given its reasons for believing that it is actually the member states that are best placed to decide how to respond to the proliferation of these substances in a manner that best fits the circumstances in their jurisdictions, and that it is of the utmost importance that member states retain their ability to decide what action should be taken in their jurisdictions regarding new psychoactive substances. On improving the functioning of the internal market in respect of their legal trade, the EU committee says, as once again the noble Lord, Lord Hannay, has said, that the UK Government’s evidence indicates that the legal trade in such substances is not sufficiently extensive to warrant the Commission’s proposed action that the committee thus regards as a disproportionate response.
We share the committee’s view, in respect of new psychoactive substances, that the case has not been made to justify transferring member states’ decision-making power to the Commission, and that the proposed regulation and directive do not comply with the principle of subsidiarity. But I have a couple of points to raise with the Minister.
The United Kingdom appears to have Europe’s largest legal highs market. At present it is not that far short of 100 new psychoactive substances arriving on the UK market per year. Yet the Government’s temporary banning order has been used just some three or four times. There appear to be two reasons. The first stage of the process is, I believe, a letter from a Minister to the Advisory Council on the Misuse of Drugs—the ACMD—but with the letter seeming to take some time to be sent. The second reason is the resource capability of the ACMD that apparently can assess only two or three new substances a year. Perhaps the Minister could comment on this situation and give us his view of the reasons for it.
The EMCDDA produces lists of new psychoactive substances. Despite requests, no explanation has been offered to date as to why there are substances on its list that have not made it on to any Home Office list. Perhaps the Minister could provide this explanation. As things stand, it seems that we will never be able to keep up with the number of new such drugs on the market, despite the apparent universal concern, including from the EU committee, about the risk of harm to the health and safety of citizens across Europe posed by the creation, availability and use of these new psychoactive substances.
In conclusion, I reiterate that we support the recommendation in the EU committee’s report.
My Lords, I thank the noble Lord, Lord Hannay, for tabling this debate and through him, as chairman, thank the other members of the committee. The EU proposals published on 17 September on new psychoactive substances raise many issues around the principle of subsidiarity, and I think that warrants the attention of this House.
My noble friend pointed out that the Minister for Crime Prevention, Mr Norman Baker, gave evidence to the European Scrutiny Committee on 16 October. The reason for the debate today is to consider how the House wishes to respond and whether it wishes to issue a reasoned opinion to the EU institutions.
The European Commission’s draft regulation and directive aim to strengthen the European Union’s ability to respond to new psychoactive substances. The new regulation will replace the existing EU instrument, council decision 2005/387/JHA. The directive is a consequential instrument for member states to enforce the regulation through appropriate criminal penalties for new psychoactive substances categorised as severe risk.
In recent years, new psychoactive substances—NPS or, as already referred to in this debate, legal highs—have rapidly changed the nature of the global drugs market. The noble Lord, Lord Rosser, made this point very well. Substances that are not under international control but mimic the effects of controlled substances are now widely available. They have the potential to pose serious risks to public health and safety. My noble friend Lord Sharkey highlighted recent cases and the tragic responses. The speed at which the market has developed, the wide availability and accessibility of NPS legal highs and the concern about their increasing use makes this a significant issue that is not just national or European but global in nature and requires collective action at all levels. We have a comprehensive and well recognised response to new psychoactive substances that covers early warning, legislation, demand reduction and treatment, as well as galvanising international co-operation and activity. I will come to that in a moment.
In our legislative approach, we have deployed generic definitions whereby entire families of drugs are brought under the Misuse of Drugs Act 1971. This approach has continued to place the UK in a much stronger and more durable position. Temporary class drug orders enable us to ban NPS in weeks rather than months where there is an immediate concern. Through these mechanisms, we have controlled the majority of NPS seen in the EU since 2005. Since 2010, we have controlled in excess of 200 new psychoactive substances including 15 currently under temporary control. That point was also made by the noble Lord, Lord Rosser.
While the EU-wide NPS identification and monitoring component has been very useful to us in complementing our own drug early warnings systems, it is harder to see the benefit of the risk assessment and banning process. To date, the requirement for member states to ban certain NPS has had little impact for the UK. Just 13 risk assessments have been conducted, and only nine NPS have been subject to this requirement, of which eight had already been controlled in the UK, including mephedrone.
As my noble friend Lord Bridgeman pointed out, the principle of subsidiarity is that decisions should be taken as close as possible to the citizen. As such, the EU should act only where it would add value. The Government are concerned that, as drafted, Article 4 of the regulation would fetter our discretion to respond flexibly to national issues with NPS as they arise. All noble Lords have made this point. The proposals are currently drafted under the Article 114 legal base, which is about internal markets and makes this a harmonisation measure, rather than setting out minimum standards under Title V.
Given that only 13 risk assessments have been conducted under the existing NPS instrument since 2005, it is difficult to see how, without significant additional resources in the early warning and risk assessment processes, the proposals will impact in any notable way on the NPS market. With many member states over the past four or so years bringing in extensive domestic measures to control such substances, the value of the potential control measures under the new proposals is unclear.
Beyond the concept that there is a legitimate trade in NPS that needs to be accepted and, indeed, protected, the fact that the UK has placed restrictions on the majority of NPS seen in the EU undermines the suggestion that the proposals would add value to the UK’s current approach. The noble Lord, Lord Hannay, pointed this out.
The Commission’s argument is that one in five NPS has a legitimate purpose, for example, in industry. However, the UK’s experience is that such substances are the exception rather than the rule. In fact, out of more than 300 substances, we can identify only a handful: two as industrial cleaners and a few others, called piperazines, used in the preparation of medicines. Our current legislation has the flexibility to accommodate these substances by enabling their legitimate use in industry to continue while restricting wider availability. We are looking to challenge the Commission’s evidence base to understand how it came to its conclusion that there is a substantial legal use for NPS.
Given the lack of evidence for a legal trade in NPS, the Government believe there are strong arguments that the regulation, as well as the directive, should cite a JHA legal base. We also take the view that both of the proposals build on the police and judicial co-operation elements of the Schengen acquis and that our opt-out therefore applies. That said, it is important for me to emphasise that this does not necessarily mean we will opt out. We will need to look at the proposals on their merits. Key factors will be points about subsidiarity and the proportionality of the proposed measures.
I should like to pick up on one or two points made during this debate. As my noble friend Lord Sharkey pointed out, the UK has a strong position in dealing with these issues of NPS. For example, the Misuse of Drugs Act provides a flexible legislative framework to tackle immediate or potential health risks. Of the three main groups, more than 80% are banned in the UK. The latest annual report of the European Monitoring Centre on Drugs and Drug Addiction said that in 2011, there were 49 new drugs, but only 17 were reported more than once in the UK, out of which 14 were already controlled. In 2012, as the noble Lord, Lord Rosser, said, there were 73 new drugs, but only 18 were seen in the UK, all already controlled.
There are a couple of other measures. From 2011, the Home Office set up a response to legal highs, known as the forensic early-warning system. It detects new drugs in the UK through test purchasing and forensic work. It also informs the considerations of the Advisory Council on the Misuse of Drugs and our wider responses. We also have the drugs early-warning system.
Will the Minister accept that the UK Border Agency, leading ACPO officers and many other officials and experts in the field will say that even if a new psychoactive substance is banned, that does not mean that children and young people all over the country are not getting it? They are. The UK Border Agency, for example, talked about its great big warehouse with mountains of little packages; it has no idea what is in those packages—just lots and lots of white powders. Those packages are seized from the post, but the UKBA says that it is a drop in the ocean: it is not touching it or scraping at the edge of the thing at all. Will the Minister accept that we do not and cannot control these new psychoactive substances because they are purchased on the web and delivered direct to children’s and young people’s homes? Therefore, we need a more sophisticated approach to this, which is why the European Union has come to the conclusion that we need to think about the low-risk substances—to differentiate, have a proportionate response and so on. It is just not good enough to say, “We have a system; it works”. The fact is that it does not; the Government’s people recognise that it is not working.
I thank the noble Baroness for her intervention and, of course, for the excellent work she does in her chairmanship of the APPG. I do not for a moment suggest—nor do the Government take this position—that everything can be controlled through such measures. She pointed to the internet: internet purchasing of NPS is quite low. I understand it is at the rate of about 2%. That said, there has to be an acceptance that, of course, banning something does not mean that a substance or a derivative of one will not get through. After all, these are derivatives of what already exists in the market and, as all noble Lords acknowledge, this is unfortunately a dynamic market and you can never control what new substances are coming. It is only possible when something is identified. However, currently we take account of the different representations made by different agencies and we work with EU partners in sharing information and good practice. That is something that the Government subscribe to. However, as the noble Baroness herself acknowledged in her contributions, the UK is far ahead of others in identifying and dealing with some of these matters. Of course, we ultimately need to ensure that we try to stop as quickly as possible these drugs that are coming on to our markets and streets and appearing in people’s homes. There is no doubt that challenges remain and we need to address them as they arise.
Finally, as I already said in acknowledging some of the noble Baroness’s remarks, the Government retain our position that the European Union has a role to play in tackling new psychoactive substances, but we are not convinced that the current measures will add value to the work that the UK is already doing and leading in this area.
In winding up this debate, I should like to thank all those who participated, particularly the two members of my sub-committee, the noble Lord, Lord Sharkey, and the noble Viscount, Lord Bridgeman, for their contributions. It is always a source of pleasure to find that the two Front Benches are in agreement with a cross-party committee such as ours. Therefore, there is clearly very broad support for tabling this reasoned opinion.
I listened with great care to my noble friend Lady Meacher, who is of course a major expert on these matters and who has made some extremely relevant observations about the difficulty of dealing with these psychoactive substances. She must be right when she says that we should not delude ourselves into thinking that because the Commission proposals are in our view not fulfilling subsidiarity and are disproportionate, we therefore have all the answers. We clearly do not have all the answers, and the Minister admitted that. The question that comes up under subsidiarity is: will action at the European Union level add value and be more effective? That is where these proposals fall down: we do not have a perfect system, but the one that is proposed could lead to quite difficult issues arising if, for example, great harm were found in the UK from one of these substances—if people died from it—and we were not able to take action. That would be damaging both to us in Britain and to the European Union.
I hope that when this matter comes to be dealt with in Brussels—whether or not we reach the threshold for the yellow card, as it is called, which is perhaps not certain— the Commission will take a very careful look. It will need to reply to this reasoned opinion we are making, whether it achieves the yellow card threshold or not. I hope that it takes a very careful look again at the decision-making processes that it proposes. There are elements in the proposal that are excellent; clearly the EMCDDA has a bigger role to play in these substances and I hope that it will be given more resources as the new budget arrangements come into effect from the beginning of next year. It would be a good thing if that happened, because it does excellent work and could greatly help member states with the action that they have to take in this field. Europol devotes quite a lot of its resources to drugs and clearly has a major role to play in breaking up the trafficking of these products and so on. However, we take issue with the decision-making process; that is the basis for the reasoned opinion and the basis on which I beg to move.
New Psychoactive Substances: Reasoned Opinion
Motion to Resolve
To resolve that this House considers that the Commission proposal for a Regulation of the European Parliament and of the Council on new psychoactive substances (COM(2013)619, Council Document 13857/13) and the Commission proposal for a Directive of the European Parliament and of the Council amending Council Framework Decision 2004/757/JHA of 25 October 2004 laying down minimum provisions on the constituent elements of criminal acts and penalties in the field of illicit drug trafficking, as regards the definition of drug (COM(2013)618, Council Document 13865/13) do not comply with the principle of subsidiarity, for the reasons set out in the 6th Report of the European Union Committee, (HL Paper 73); and, in accordance with article 6 of the Protocol on the application of the principles of subsidiarity and proportionality, instructs the Clerk of the Parliaments to forward this reasoned opinion to the Presidents of the European institutions.
Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Bill
Committee (2nd Day)(Continued)
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
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.
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?
Before legislation is commenced.
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.