Relevant document: 1st Report from the Joint Committee on Human Rights
That the Bill be now read a third time.
Clause 12: Union’s annual return to include details of political expenditure
1: Clause 12, page 8, leave out lines 7 to 17 and insert—
“(1) This section applies where the expenditure of a trade union paid out of its political fund in any calendar year exceeds £2,000 in total.(2) The union’s return for that year under section 32 must give the required information (see subsections (2A) to (2E)) for each category of expenditure paid out of its political fund; and for this purpose—(a) expenditure falling within paragraph (a) of section 72(1) is one category of expenditure, expenditure falling within paragraph (b) of section 72(1) is another, and so on; (b) expenditure not falling within section 72(1) is a further category of expenditure.(2A) For expenditure falling within section 72(1)(a), (b) or (e) the required information is—(a) the name of each political party in relation to which money was expended;(b) the total amount expended in relation to each one.(2B) For expenditure falling within section 72(1)(c) the required information is—(a) each election to a political office in relation to which money was expended;(b) in relation to each election—(i) the name of each political party to which money was paid, and the total amount paid to each one;(ii) the name of each other organisation to which money was paid, and the total amount paid to each one;(iii) the name of each candidate in relation to whom money was expended (or, where money was expended in relation to candidates in general of a particular political party, the name of the party), and the total amount expended in relation to each one (excluding expenditure within sub-paragraph (i) or (ii));(iv) the total amount of all other expenditure incurred.(2C) For expenditure falling within section 72(1)(d) the required information is—(a) the name of each holder of a political office on whose maintenance money was expended;(b) the total amount expended in relation to each one.(2D) For expenditure falling within section 72(1)(f) the required information is—(a) the name of each organisation to which money was paid, and the total amount paid to each one;(b) the name of each political party or candidate that people were intended to be persuaded to vote for, or not to vote for, and the total amount expended in relation to each one (excluding expenditure within paragraph (a)).(2E) For expenditure not falling within section 72(1) the required information is—(a) the nature of each cause or campaign for which money was expended, and the total amount expended in relation to each one;(b) the name of each organisation to which money was paid (otherwise than for a particular cause or campaign), and the total amount paid to each one;(c) the total amount of all other money expended.”
My Lords, I am pleased to return to debating this Bill, and am grateful to noble Lords for the constructive engagement and good progress that we have made. As a minor but important aside, I am sure that noble Lords will have noted that most of the clause numbers have changed and I am now addressing Clause 12—which was previously Clause 11—on political funds reporting.
In his speech on the first day of Report, the noble Lord, Lord Burns, asked the Government to come back with proposals that better balanced transparency, accountability and proportionality. We have given this careful consideration, including a very helpful discussion with the Certification Officer, which the noble Lord recommended. I will now set out our response.
Union reporting on political expenditure is not new. Unions already provide information about political expenditure in their annual return to the Certification Officer. Some do this well, providing detailed information. For example, the Communication Workers Union provides in its annual return to the Certification Officer a detailed breakdown of spend on political objects, including on elections, campaigns, affiliation fees and delegations to national and regional conferences. But others provide very sparse information, hence the need for reform.
Concerns were raised on Report about the potential burden of the Government’s proposed reporting requirements, and in particular the need to report expenditure on a bus fare paid to an individual union member. As I said, unions were required to provide details of all expenditure to all recipients in each of the categories in Section 72(1) of the 1992 Act once the £2,000 threshold was exceeded. This would have included, for example, any relatively small payment for an individual union member to attend a party conference. This was the concern raised by the noble Lord, Lord Burns, and, indeed, by the Certification Officer. I accept that this could have been onerous for trade unions.
Amendment 1 therefore seeks to provide a more proportionate level of transparency by removing the requirement to report on each item of expenditure for every individual. Instead, we now require them to provide only a total of expenditure in each category and to specify which political party, organisation or candidate has been paid. I will give noble Lords an example of how this will work in practice in relation to conferences and meetings. Rather than reporting the payments for travel to individual members to attend a party conference, the union will now have to report only the total expenditure on conferences for a particular political party in any given year. This is much more comparable to the best practice that some unions currently exhibit, and the Certification Office has told us that the amendment brings helpful clarity to reporting requirements. I hope that noble Lords will therefore agree that this is a sensible way forward.
My noble friend Lord Leigh of Hurley also raised concerns about whether it was clear that all expenditure from a union’s political fund should be reported annually to members. As I said on Report, I accept the principle of consistent transparency to which my noble friend referred. Therefore, Amendment 1 now provides that where political fund expenditure does not fall within Section 72(1) of the 1992 Act, unions should report on the total spend for each cause or campaign on which money was spent, or they must provide the name of the organisation to which money was paid.
Finally, government Amendment 3 is in response to the scrutiny of the clause by the Delegated Powers and Regulatory Reform Committee. This is the amendment that I said I would return to after withdrawing it on Report, so that it could be considered as part of a wider package. The committee noted that the power to substitute the £2,000 minimum threshold for reporting in this clause can be used not only to raise the amount but to lower it again to an amount of not less than £2,000. In the passage of time it may well become necessary to raise the threshold for reporting. However, if the Government in future, having raised the threshold, wish to revert to a lower threshold, the amendment would rightly require affirmative regulations and greater parliamentary scrutiny. This seems completely right.
I believe that the amendment improves the Bill and I commend it to the House. I beg to move.
Amendment 2 (to Amendment 1)
2: Clause 12, leave out subsection (2E)
My Lords, I, too, appreciate that the Government have moved substantially on this issue. Of course, the Select Committee and, I suspect, opinion across the House recognise that union members were entitled to more detail and transparency about political expenditure by their unions. That was reflected in the Select Committee report and the amendment moved by the noble Lord, Lord Burns.
In congratulating the Government on this move I would also express some concern about whether they have taken into account the amendment moved by my noble friend Lord Lea, which dealt with expenditure not covered by the statutory requirement on political spend. What did the Certification Officer say about this additional requirement? Instead of simplifying and reducing red tape, the Government are increasing it. Many campaigns organised by unions have industrial and political elements. As long as unions pay for the political elements from the political fund, other elements can be paid for from whatever fund they decide is appropriate.
I repeat what I said in Committee and on Report—anyone would think that the accounts of trade unions are not properly audited and scrutinised at every level of the organisation by committees, districts and executives. Anyone would think that we were talking about a local Conservative association, where no figures are published and no one, not even in the Conservative Party’s central office, knows where the funds are. That is not the case here. Therefore, in taking on board the noble Lord’s amendment, instead of reducing red tape and sticking to the sensible concern raised by the Select Committee—and I have no doubt that this concern is shared by the Certification Officer—the Government are going one step further in dictating how unions spend their money. Anyone would think—and I believe the party opposite does think—that political funds were a separate pot of gold and that £9 million had gone missing here and there. The political funds set up under statute were established to ensure that political expenditure, as defined by the 1992 Act, was covered by an element of members’ subscriptions. The legislation does not prescribe that that element of union members’ subscriptions must be spent on political purposes. Unions’ priorities vary and change. Sometimes they might not spend any money on political purposes but will want to run an industrial campaign.
Imposing this additional reporting requirement will potentially cause confusion, not greater transparency. I attended the USDAW conference at the weekend in sunny Blackpool.
It was sunny, actually. In addressing the conference, I responded to concerns about this aspect of the Bill. The Minister mentioned good practice. USDAW’s annual report to its annual delegates’ conference itemises its range of political spending. I think that is repeated in its AR21 to the Certification Officer. People asked what the Government were seeking by this additional element in the amendment and whether they had consulted on it, as it could result in members becoming even more confused. For example, how much did unions spend on the Sunday trading proposals—an industrial campaign with elements of political spend? The campaign opposing violence against shop workers was again an industrial campaign with elements of political fund expenditure. So what is the point of having a statute that says what expenditure must come from a political fund, as clearly defined in the 1992 Act, when this Bill is saying that that is not enough? If money is spent out of that fund, it has to be reported to the Certification Officer. It is an additional requirement which is a burden; it increases red tape and I doubt whether the department, or the Minister, has properly consulted on it. I beg to move.
My Lords, I support Amendment 1. The Select Committee, which I chaired, agreed that union members were entitled to more detail about the political expenditure of the unions in the annual returns to the Certification Officer. However, we were concerned by the Certification Officer’s prediction of the amount of extra work which the existing clause would cause both for the unions and for the Certification Officer himself. There was also quite a lot of confusion in Committee about exactly what the clause required and the significance of the £2,000 threshold. This seemed disproportionate to the committee and we proposed that the Government should consult the Certification Officer and come back with revised proposals which would give a better balance between accountability and proportionality.
Unlike the Minister, we have clearly not had the opportunity to have further information from the Certification Officer, but my personal interpretation is that the amendment produces a much better balance, by aggregating items of expenditure under headings which are, I hope, manageable. It is less onerous for the unions and deals with the practical concerns of the Select Committee.
I understand the concerns of the noble Lord, Lord Collins, and the issue of burdens. However, given that we are going in the direction of looking at aggregates of expenditure, it seems reasonable that all expenditure from political funds should be accounted for. Where this falls outside political parties’ expenditure and the categories in Section 72, they should be included. I support Amendment 1.
My Lords, these Benches would also welcome the simplification that this amendment recognises. We agree with the noble Lord, Lord Burns, that it provides a much better balance. I have two questions for the Government. I hope they have not forgotten something which we have said throughout this debate: for every new regulation put in, two should be taken out. Is that no longer the Government’s policy, or is this yet another example of the Government ignoring that diktat when it comes to somewhat partisan legislation?
We now have the slightly ridiculous situation where two bodies monitor political funds and expenditure: the Electoral Commission and, in relation to trade union funds, the Certification Officer. What consultations have the Government had on this new amendment with the Electoral Commission, and are they satisfied that it eliminates unnecessary duplication between the two organisations?
My Lords, although I welcome the Government’s movement on this, the original draft of the clause was, frankly, unworkable. This is definitely a step in the right direction, although my noble friend Lord Collins and the noble Lord, Lord Stoneham, require answers to their questions.
Before the Minister replies, I will point out something which I have mentioned at earlier stages in the passage of the Bill. In the five years to 2015, £64 million was given by trade unions in political donations, but £80 million was given to various parties—predominantly the Conservative Party—by other organisations. What steps is the Minister taking to ensure that there is a parallel requirement for reporting for all the other organisations which make political donations?
I welcome Amendment 1. The Select Committee actually said there is a “lack of transparency” over how political funds are spent. Such transparency would assist union members in having an informed choice over whether to sign up to paying a political levy. The amount of money in political funds varies from £14.8 million in reserves for Unite to £8.2 million in UNISON and so on. While I welcome Amendment 1, which seeks to categorise payments, Amendment 2 would take away the whole point of the transparency that would allow union members to see how their money is spent when it is not being spent directly on political parties.
The move to transparency is taking place throughout all areas of our lives. In the Conservative Party manifesto—indeed, it is actually happening—the Government committed to disclose online any expenditure over £25,000. Given the amount of money the Government spend in a year, it does not seem unreasonable to look for similar transparency on union political spending.
My Lords, I am sure the noble Lord, Lord Leigh, forgot to declare in his contribution that he was the treasurer of the Conservative Party. I support my noble friend Lord Collins’s amendment to the amendment. Of course we support transparency but Amendment 1 adds another section, which in our view is completely unnecessary.
Many years ago I chaired the general political fund committee of—I think it was NALGO then, before Unison came about—and the amount of information given was extremely elaborate. There was an annual report and a magazine. There was absolutely no doubt about where the expenditure went, and I have no doubt that that information is still communicated.
I just wonder why this “Lord Leigh clause”, as I think I am going to call it, is really necessary. It seems to me that it is the thin end of a wedge and could be utilised in future. Amendment 1 adds an unnecessary burden to the unions. Without proposed new subsection (2E), it would still provide all the information that the Select Committee asked for.
My Lords, Amendment 2 to government Amendment 1 seeks to reduce the level of transparency on all expenditure from a union’s political fund. Of course, during debates in this House noble Lords have referred to unions supporting various campaigns, causes or organisations from their political funds that are not clearly linked to the categories of expenditure under Section 72(1) of the 1992 Act. As I explained, we are seeking to make things clear.
The noble Lord, Lord Collins, whose knowledge of this area has been extremely helpful during the passage of the Bill, asked about the Certification Officer’s view on what I think has rightly been named the “Lord Leigh amendment”. The Certification Officer acknowledged that this may mean some additional reporting for some unions. However, he welcomed the proportionate approach and clarity of the overall package, and supported the change. I am also extremely grateful to the noble Lord, Lord Burns, for his support, given all the expertise he developed during his splendid committee inquiry.
The noble Lord, Lord Stoneham, asked—as he always does—about burdens, a point on which he and I tend to agree. I will write to him but I think the one-in, two-out rule applies to business costs and therefore on a point of detail may not apply, but I will certainly check that and write to him. What I would say is that in this amendment we are trying to get away from the bureaucracy and detail of the individual recording of bus tickets. That has been the whole point.
We are not seeking changes to the political arrangements in relation to expenditure by the Conservative Party, for example, or changes in the Electoral Commission rules. We have brought in an amendment which I think improves things, and agree with my noble friend Lord Leigh that better transparency is required across all expenditure from political funds to enable union members to decide whether or not to contribute and, importantly, that it does so in a clear and proportionate way. I believe that the package of amendments I have set out today achieves that.
I think the noble Lord, Lord Whitty, was seeking to make a parallel with the area of political donations, and I explained that this provision did not seem to have a parallel with the point that he was making. For that reason, I felt that we should leave the amendment as it is.
I appreciate the noble Baroness’s remarks, and I am going to repeat them, because I think the purpose of her amendment is undoubtedly to make things clearer. Certainly, defining the reporting mechanism in accordance with Section 72 of the 1992 Act is entirely appropriate. That is a good thing, and it is best practice. But this new subsection (2E) in the amendment—the “Lord Leigh amendment”—will not make things clear and will not make things transparent. It may have unintended consequences. There is no doubt but that all the expenditure of a trade union is properly accounted for. I will keep repeating that because there is a suggestion that if it is not reported to the CO or detailed in the AR21, the annual return, it is somehow not properly accounted for. It is properly accounted for, in the accounts.
As I say, when I went to the USDAW annual delegate conference in Blackpool, they went through the details and the sections of their report page by page and paragraph by paragraph, and questions were asked. The report gives a breakdown of the political expenditure. But the statute governing the nature of political expenditure is now being asked to cover non-political expenditure, as if that is somehow not accounted for somewhere else. This is a step too far and will lead to complications. With this detailed reporting, there is potentially a mismatch between the Electoral Commission’s information, which is published as the donations received by political parties, and the returns of the unions, which will talk about affiliation fees in separate years. There is the potential for some form of conflict there.
I accept that the original amendment addresses the concerns of the Select Committee, and totally accept that it is an attempt to make things clearer, but I am extremely disappointed that the Minister has included the amendment of the noble Lord, Lord Leigh, because it will just lead to further confusion. Bearing that in mind, I beg leave to withdraw my amendment.
Amendment 2 to Amendment 1 withdrawn.
Amendment 1 agreed.
Amendments 3 and 4
3: Clause 12, page 8, leave out lines 18 to 20 and insert—
“(3) The Secretary of State may by regulations made by statutory instrument amend subsection (1) by substituting a different amount, which may not be less than £2,000, for the amount for the time being specified in that subsection.(3A) Regulations under subsection (3) that substitute a higher amount shall be subject to annulment in pursuance of a resolution of either House of Parliament. (3B) No regulations under subsection (3) that substitute a lower amount shall be made unless a draft of them has been laid before Parliament and approved by a resolution of each House of Parliament.”
4: Clause 12, page 8, line 27, at end insert—
“( ) In this section “candidate”, “electors” and “political office” have the same meaning as in section 72.”
Amendments 3 and 4 agreed.
Clause 13: Publication requirements
5: Clause 13, page 8, line 40, after “regulations” insert “made by statutory instrument”
My Lords, I start by thanking those who have helped us reach a modicum of consensus—I should probably stress the word modicum, as I do not want to tempt fate—in particular the noble Baroness, Lady Hayter, with whom I have had several conversations, along with her colleagues on the Front Bench and the noble Lord, Lord Stoneham.
A number of legitimate concerns have been expressed about how far reaching these provisions relating to this clause will be and how they might be implemented. The Government have listened to these concerns and, to address them, have acted in a variety of ways.
First, we produced a clear list of bodies that will be in scope. We used the Freedom of Information Act as a starting point for this and, as I committed to do on Report, we have now shared this list with the House as part of the draft regulations. However, I clarify again that the scope of facility time transparency will mean that it applies only to organisations with 50 or more employees and at least one trade union official. Those bodies that do not meet these criteria may exclude themselves from the facility time transparency measures.
Secondly, there was equally legitimate concern about the need to ensure that we are clear which organisations may be in scope. In particular, several noble Lords were concerned about the provisions applying to organisations only partly funded by public funds. The Government agree that that is a legitimate concern and, with that in mind, I now put forward an amendment that would ensure that only those public sector bodies mainly funded by public funds could come within the scope of regulations made under Clause 13(9). I know that that change was important to a number of your Lordships.
Thirdly, we have also brought forward Amendments 5 and 7, which will ensure that any exercise of the power in Clause 13(9) will be by way of the affirmative resolution procedure. This should provide the assurance that a number of your Lordships sought—namely, that inclusion in regulations of bodies that are not public authorities but are performing functions of a public nature will come about only once both Houses of Parliament have expressly so agreed by affirmative resolution.
Let me now address a specific concern raised by the noble Baroness, Lady Hayter, regarding the scope of this clause and Clause 14, and the possible impact on charities. As I have said before, none of us wishes those clauses to apply to what I would call a typical charity—for example, Oxfam and charities of the type that fall outside what I would loosely refer to as the core public sector—or a relatively small charity performing laudable work in the community, such as tackling homelessness or addiction. As the noble Baroness, Lady Hayter, highlighted, some of those charities might—might—receive most of their revenue in one year from the public purse. The Government agree that we need to give them the comfort that, were that ever to be the case, they would not and could not come within the scope of these provisions. I therefore committed on Report to continuing to work with officials and the noble Baroness to devise an approach to alleviate and address those concerns.
I now confirm that the Government are committed to ensuring that regulations made under the extension powers in Clauses 13 and 14 capture only those charities that could be captured by the Freedom of Information Act and its Scottish equivalent and are also mainly funded by public funds. In future, if a charity met both of those criteria, Parliament would properly scrutinise whether the scope of the regulations should be extended to them, and this would be done via affirmative resolution. Therefore, because I know just how important this issue is to noble Lords, I will ensure that we will not use the powers to capture a charity that the Freedom of Information Act and Scottish equivalent could not also capture.
I believe that we have given due consideration to your Lordships’ concerns regarding the scope of the clause. We have reflected on many of these matters, the Government have made amendments to discharge noble Lords’ misgivings, and we hope that your Lordships will support the amendments.
My Lords, I thank the Minister for introducing the amendments, each of which we are pleased to support. In doing so, I recognise the movement that the Government have made—particularly from “partly” to “mainly”.
We should, however—the Minister is right to smile—read the amendments on the scope of facility time and check-off restrictions in the Bill in the context of the helpful, albeit slightly belated, letter that I received from him late on Friday, which I imagine is also in the Library, and which outlines which organisations will be caught by the provisions. In the light of that 15-page draft, a skeleton regulation which would give effect to the mandatory reporting on facility time and the restriction of an employer’s freedom to operate check-off, I fear that I have seven questions for the Minister.
First, have the 255 bodies listed in the draft regulations, which are about to find themselves caught by them, been consulted? Secondly, why is the Legal Services Board on the list? It does not get government money, being funded by a levy on lawyers, and should therefore be excluded, alongside the Gambling Commission, by virtue of the third of the Government’s exclusions, as set out at the top of the second page of the Minister’s letter of Friday 22 April. When this House accepted the Legal Services Act 2007, it felt it important that the Legal Services Board should be independent of government for international as well as domestic reasons. Its inclusion in a list of bodies, restricting its managerial freedom, could be of concern.
Thirdly, the list refers to the proprietor of an academy under the 2010 Act. Given that the Government are now threatening that all schools should become academies, despite the resistance of many Conservative MPs, to say nothing of that of head teachers, governors and parents, particularly of primary schools, will the Minister clarify whether, should that White Paper find its way into the Queen’s Speech, any forced new academies would be covered by this provision?
Fourthly, with regard to charities—and I thank the Minister for our discussions on this and for what he said today—would housing associations be covered under his definition? The Minister made what appears to be a useful statement today and in his letter: it is not the Government’s intention to include organisations which the general public would consider to be charities—such as Oxfam or others doing valuable charitable work funded by the public purse—within the scope of the Bill. However, the letter also states that the “starting point for scope on public bodies captured remains those public authorities in the Freedom of Information Act”.
Given the reports last year that Matt Hancock, the Cabinet Officer Minister, was considering extending freedom of information into the charitable sector, will the Minister confirm that the Government have dropped that idea or at the least confirm that even if it were to be resurrected, the Government would still exclude charities of the sort he described from these facility time and check-off provisions? The Minister has kindly had discussions with us about charities, but there remain problems within the sector and concern about the definition. Will he therefore look again, as we asked before, and give some comfort by using words to define the exclusion, such as: “charities, regardless of their funding arrangements, which are independent organisations that have satisfied the public benefit test and are regulated by the Charity Commission.”? This would not cover the exempt charities, such as universities, which are regulated by another body. That would give comfort, should freedom of information be extended in a way that has not been covered by what the Minister said today.
Fifthly the breadth of the scope on facility time, in particular the inclusion of public broadcasters, including the BBC, and arts bodies, such as the British Museum and the Tate, continues to concern us. What is the justification for intervening in such beacons of independent and artistic freedom? The Minister no doubt saw the amazing tribute to Shakespeare from Stratford on Saturday night. It must have involved lots of discussions of safety, overtime, copyright and performance rights. Is he content these would all need documenting before the show could go on?
Sixthly, with regard to the detail that employers will have to document on facility time, we remain concerned about both the onerous—indeed, “burdensome” is the word—amount of red tape and the bureaucracy involved, as well as about how much information employers will have to demand of union reps about how they spend their time, often encroaching on to confidential or contentious matters. For example, the draft skeleton regulations require employers to provide a breakdown of the proportion of facility time spent on different union duties. They list them: health and safety, redundancies, TUPE, collective bargaining, training, and representation in grievances and disciplinary hearings. This means union reps having to disclose that to employers, but those amounts of time will vary on a weekly basis, and in many workplaces it will be difficult for employers to decide what counts as time spent on collective bargaining as opposed to time spent on redundancy, on TUPE or on training, because these activities often take place at the same time, including when a lay official meets with a full-time union official or the employer to discuss a basket of issues.
Seventhly—there are only seven questions—under a different Bill, with which the noble Baroness, Lady Neville-Rolfe, is familiar, the exit payment cap was feared to cover Magnox, which seemed to be defined as being in the public sector. However, over the weekend I saw an email from the Office for National Statistics that evidenced ongoing discussions over whether that is the case. The outcome of those discussions of course has considerable implications for its long-standing and older employees. Given those sorts of issues, is the Minister confident that such complications will not arise in the questions over scope in this Bill?
The House will know that no employer has sought this interference with its right to manage, and that many are concerned about the red tape and cost that it entails, which makes us think that the Bill’s real aim is to make union organisation harder. But if it is to happen, we urge the Government to have constructive debates with the charity sector, affected employers and trade unions, and to allow each of these enough time to construct and bed down the necessary form-filling processes. A lot of work will be involved, and it needs to be undertaken without ridiculous haste if it is to be effective, efficient and give value for money.
My Lords, I want briefly to contribute on this set of amendments to welcome, on behalf of my colleagues, the way in which the Minister has responded to our request last week to ensure that we saw the draft regulations. In particular, he has addressed the issue of the affirmative and negative procedures, and I am delighted to see in Amendment 7 that he has opted for the affirmative procedure.
However, I have a similar concern to that of the noble Baroness, Lady Hayter, on the issue of the cross-reference to the freedom of information legislation. As she and I are well aware, it is, we suppose, currently still under review. We therefore need to know whether the list of those organisations that are included in that legislation is as now or as it might be in the future. Would it not be a sensible compromise—perhaps the Minister could give us this assurance—that the cross-reference should be to those organisations that are included at the time of Royal Assent to this Bill and therefore relevant to this section of this Bill, in terms of facility time and indeed of check-off? It would be rather peculiar if, as it were, the Minister anchored himself into something that was on the move, and we therefore found ourselves in a period of less transparency, less credibility and less definition rather than, as I think was his intention, greater clarity.
My Lords, I thank the noble Baroness, Lady Hayter, and the noble Lord, Lord Tyler, for those very acute contributions. I apologise to them for not getting the letter to them sooner. However, I am grateful for the welcome that it has received. The noble Baroness, with her customary acuteness and accuracy, has shot seven Exocets across my bow on this. I shall attempt to answer them, and if I fail to do so then obviously I shall write to the noble Baroness and the noble Lord and put the letter in the House Library.
Have the 255 bodies been consulted? We will be discussing these with all these bodies as we proceed towards implementation. As regards specific bodies, the noble Baroness has clearly picked on a few here. I shall write to her as regards the Legal Services Board. We have been working very hard to try to make sure that the list is as accurate as possible—I stress that this is a draft—but I quite understand your Lordships when they say that that is not altogether satisfactory, and I am grateful to the noble Baroness for drawing my attention to the Legal Services Board. As regards academies and housing associations, those bodies will be covered if they meet the provisions as set out. I shall write with complete accuracy to the noble Baroness on those two points—but, as regards academies, my understanding is that they would be covered if they met the provisions.
The noble Lord, Lord Tyler, and the noble Baroness referred to the FOIA, and whether or not we might be looking at these issues. I stress that the FOIA was based as a starting point. Clearly, there is the double lock of not just being on the FOIA but being mainly funded. I shall look again at the words—I make no commitment about this, I am sorry to say—but I am unable to do so right now. The noble Baroness made some suggestions about wordings and the noble Lord made some suggestions about where we might be in future. I shall write to them both about those specific points, but I cannot make any commitments to change right now. However, I repeat that those are good points.
As regards the burdens, I heed what the noble Baroness has to say. As we saw in the previous exchange, when my noble friend discussed the previous amendment, this Government wish to ensure that we do not unnecessarily add to burdens. I stress that the information required for publication is a narrow and reasonable range, similar to that which, for example, English local authorities publish as part of the Local Government Transparency Code and which the Department for Education recommended that all schools publish in its 2014 guidance.
I shall end on that point. I commit to write to the noble Baroness.
Amendment 5 agreed.
Amendments 6 and 7
6: Clause 13, page 9, line 42, leave out “partly” and insert “mainly”
7: Clause 13, page 10, line 8, leave out from beginning to second “shall” and insert “No regulations containing provision made by virtue of subsection (9) shall be made unless a draft of the statutory instrument containing them has been laid before Parliament and approved by a resolution of each House.
(13) Regulations under this section to which subsection (12) does not apply”
Amendments 6 and 7 agreed.
Clause 14: Prohibition on deduction of union subscriptions from wages in public sector
8: Clause 14, page 10, leave out lines 16 and 17 and insert—
“(1) A relevant public sector employer may make deductions from its workers’ wages in respect of trade union subscriptions only if—(a) those workers have the option to pay their trade union subscriptions by other means, and(b) arrangements have been made for the union to make reasonable payments to the employer in respect of the making of the deductions.(1A) Payments are “reasonable” for the purposes of subsection (1) if the employer is satisfied that the total amount of the payments is substantially equivalent to the total cost to public funds of making the deductions.”
My Lords, following our positive discussions in your Lordships’ House on Report, I am amending Clause 14 as I promised, to reflect an arrangement whereby check-off continues within the public sector on the crucial proviso that there is no burden on the taxpayer.
There was one concern, which concerned the Certification Officer’s role. While I appreciate the sentiment of my noble friend Lord Balfe and others, the Government believe that it is not the role, and should not be the role, of the trade union regulator to assess the reasonableness of the cost to employers and unions of check-off. However, it is important that these costs are indeed reasonable. So we have set out on the face of the Bill that employers must satisfy themselves that the total amount of the payment is only substantially equivalent to the total cost to the taxpayer of making these deductions.
I stress that the amendments regarding those organisations within the scope of this Bill apply equally to Clause 14 as they do to the facility-time transparency clause. This means that, were the scope to be extended in future, it could apply to bodies which are not public authorities only if they are mainly funded by public funds. To be absolutely clear, it is not the intention of this Government ever to include charities if they could not also be captured by the Freedom of Information Act.
I assure your Lordships that we will, of course, give adequate timeframes for new charging arrangements to be set up. It is our intention to provide a 12-month period prior to commencement for such arrangements to be properly established. I appreciate the co-operation of the noble Baroness and others and I beg to move.
My Lords, I very much welcome this clause. It represents common sense and shows that the Minister has listened to the representations that have been received.
I do not intend to speak again during this debate but I will pick up on a point made earlier by the noble Lord, Lord Collins, who mentioned twice that he had been to an USDAW conference. I am sure that he had a very good welcome there. I was a member of USDAW for a few years, when I worked for the Co-op. I will place on the record that the understanding of the trade union movement would be much enhanced in the political comity of Great Britain if the unions extended invitations to their conferences beyond just one political party. One of the difficulties, which has been seen in the Bill and is seen in other places, is that although 30%-plus of trade unionists vote Conservative and a good number vote for the Liberal Democrats and the nationalist parties, the trade unions persistently seek to relate to only one political party. It would be for the good of the trade union movement and that of the noble Lords sitting opposite if the union movement could be persuaded to look a little beyond its comfort zone and to engage with all legislators. That could possibly avoid many of the misunderstandings that have occurred in the past. Having said that, I welcome the clause; it is a very good step forward and I thank the Minister for his introduction of it.
My Lords, I will briefly pay tribute to the Minister and also to my noble friend Lord Balfe, because this is essentially his amendment, which a number of us were very glad to add our names to and which has been taken on board by the Government. Although I am not seeking 26 or even 25 invitations to Blackpool, I endorse what my noble friend said and I have a great respect and admiration for USDAW and the way it has conducted itself over many years.
My Lords, I, too, congratulate the Government on bringing forward this amendment. However, will the Minister accept that under the new provision it would be open to the employer not to enforce the relevant payments for whatever reason if they decide not to do so in the future in any particular circumstance?
My Lords, I add my voice to those congratulating both Ministers on the way in which they have handled the Bill, perhaps especially the last part, which could have been quite a contentious area. It has been approached in a sensible way, and invitations might flow to my noble friend Lord Balfe and others. I certainly second his last point that it would be in trade unions’ interest—as I have always believed—to be prepared and proud to invite members of all parties to their conferences. It would be in the interest of the country for all parties to have a progressive and constructive relationship with the trade union movement and British industry.
I think that noble Lords will find that trade unions do invite people from all political parties to their conferences. I thank the Minister for explaining the amendments to Clause 14. The Opposition are happy that Amendments 8 and 10 reflect the discussion and agreement with Ministers on the future deduction of trade union members’ subscriptions from pay in particular, and reflect the importance of having the same choice as staff in the private and voluntary sector as to how they pay their subscription in the light of their work, their personal circumstances and their financial situation.
For us, the key points arising from the publication of both the facilities time and the check-off draft regulations are: first, the need for a full consultation on the regulations; secondly, the importance of the Minister meeting the TUC and other main parties, including unions and employers, to discuss realistic and achievable timescales for implementation; and, thirdly, for implementation dates to be viewed across the entire provision of the Bill in the light of the huge organisational, logistical and financial challenges that the Bill presents to trade unions, not just from the check-off and facility time provisions but from the Bill’s proposals on ballots, political fund changes and the role and powers of the Certification Officer.
There was no consultation on the check-off provisions, so it is now absolutely vital that the Government commit to full consultation on the regulations before the final draft regulations are published. As has been pointed out, the current drafts were received by us as late as Friday/early Saturday, so we had less than three working days between the final Report day and today’s Third Reading. I hope that the Minister will acknowledge this and that the spirit of meaningful listening mode will prevail and operate in this regard.
On Amendment 9, my noble friend Lady Hayter underlined our continuing concerns and reservations about the scope of the organisations that come under both the facility time and check-off provisions. She has made it clear that the concerns apply to both Clauses 13 and 14, so I will not repeat the issues that she has raised. One matter, however, specifically on check-off is the Government’s decision not to exclude smaller employers—that is, those with fewer than 50 employees—from the check-off regulations in line with the proposed provisions in the facility time regulations. Can the Minister explain the rationale behind this?
As I have stressed, I hope that the Minister will be prepared to consult widely on the implementation date for check-off and to set in the final regulations a timescale for implementation that is both reasonable and achievable. Noble Lords will recall that the check-off impact assessment gave no consideration at all to the position we have now arrived at: for check-off to continue, with trade unions meeting the administrative costs. It considered only the two stark options of doing nothing at all or having a complete check-off ban—and even then it did not consider those very thoroughly.
Thus, no modelling or work was undertaken on the process for revisiting all check-off agreements to ensure that they comply with the new legislation. UNISON, for example, estimates that it has to sign 25,000 check-off agreements as a result of the Bill, so it is important that the full processes involved in this, workplace by workplace and employer by employer, are recognised in the deadline for implementation. It is imperative that a further impact assessment is undertaken and that evidence and information are properly gathered. I hope that the Government will commit to this.
The current draft regulations provide for the check-off provisions to come into force at least 12 months after the Bill receives Royal Assent. I note that the Minister talked about adequate deadlines and I would say that that is not adequate. I hope that the Government will not come back saying that they have already extended the deadline from three months. This was done five months ago by the Government in the Commons, based on the old Bill and not in the light of the new provisions. The noble Lord, Lord Bridges, said on the second day of Report that,
“undermining the trade unions themselves ... is certainly not—and never has been—the Government’s intention”.—[Official Report, 19/4/16; col. 584.]
I hope that today the Government will hold true to that contention and accept the need for a further impact assessment on check-off, as well as full consultation on realistic and achievable implementation deadlines for the provisions across the Bill.
My Lords, I start by echoing the thanks to my noble friend Lord Balfe for his contribution to the Bill. I should have included his name at the start. I, too, love paying a visit to the seaside: Blackpool, Bournemouth and Brighton—I do not think we should forget the other “B”s. His point about extending plans across the political divide when it comes to trade union conferences was very well made.
I turn to the points that have been raised and begin with the very good point that the noble Lord, Lord Pannick, made about enforcement. All public sector employers are expected to comply with the law and will have monitoring arrangements in place to ensure that such compliance happens. Failure to comply with a statutory duty is of course judicially reviewable, but personally I do not expect any responsible public sector employer to let non-compliance get that far before the matter is addressed.
I turn now to the points that the noble Baroness, Lady Wheeler, has made. Again, I apologise for not getting her the regulations sooner; I accept that that is not ideal. The noble Baroness made a very good point about consultation. This is why we need a year before the commencement of this, and we will of course wish to talk to bodies that are affected by it to make sure that it is run and introduced as smoothly as possible.
With regard to the point about scope and why smaller organisations are not excluded, the underlying principle is that there should be no burden on the taxpayer. As such, this clause applies to all those we consider public authorities for the purposes of the Bill. We accept that for small organisations the costs may be correspondingly smaller. However, they are still costs. If an organisation determines that the costs are truly negligible, we will have to trust those on the front line—that we need to trust those on the front line is a point that has been made by a number of your Lordships in the past—to make a sensible decision. They may decide to move a few members over time to direct debit, for example. However, and I stress this point, the organisations in scope are, in the main, subject to the FoIA, and must be prepared to respond to any FoI requests with regards to their check-off arrangements. I again stress that the bottom line is that we need to trust those on the front line.
Will we commit to a further impact assessment? Yes, we will. With that in mind, I beg to move.
Amendment 8 agreed.
Amendments 9 and 10
9: Clause 14, page 10, line 23, leave out “partly” and insert “mainly”
10: Clause 14, page 11, leave out lines 5 to 7 and insert—
““trade union subscriptions” means payments to a trade union in respect of a worker’s membership of the union;”
Amendments 9 and 10 agreed.
11: Before Clause 15, insert the following new Clause—
“Certification Officer not subject to ministerial direction
In section 254 of the 1992 Act (the Certification Officer), at the end of subsection (2) insert “(but is not subject to directions of any kind from any Minister of the Crown as to the manner in which he is to exercise his functions)”.”
My Lords, the Certification Officer has always been independent of government and I am happy to say that we fully agree that he should remain independent in future. That is why I am bringing forward Amendment 11 to state expressly in the 1992 Act that the Certification Officer is not subject to ministerial direction when exercising his statutory functions. Furthermore, as I mentioned on Report, we have agreed that, in future, appointment processes for the Certification Officer will be regulated by the Commissioner for Public Appointments. This will be reflected in the public bodies Order in Council when it is next revised in July. I believe that this fully addresses the House’s concerns, and I ask noble Lords to support the amendment.
Amendment 11 agreed.
Schedule 4: Minor and consequential amendments
12: Schedule 4, page 29, line 24, leave out paragraph 1 and insert—
“ Omit section 24C and sections 24ZH to 24ZK of the 1992 Act (which are superseded by the inserted Schedule set out in Schedule 1 to this Act).In section 25 of the 1992 Act (remedy for failure: application to Certification Officer) in subsection (6A), for “section 24ZH or 24ZI” substitute “paragraph 2 or 3 of Schedule A3”.In section 45D of the 1992 Act (appeals from Certification Officer)—(a) omit “24C,”;(b) after “45C” insert “or paragraph 5 of Schedule A3”.”
My Lords, Amendments 12, 13 and 14 are minor and technical amendments to Schedule 4. I promise not to detain the House for long as they are not changes of substance. Under the transparency of lobbying Act, the Certification Officer’s investigatory powers in relation to trade union membership registers are due to commence on 1 June. These amendments make the necessary consequential amendments to the 1992 Act. The practical effect will be the same. The amendments also address the Certification Officer’s powers to set the procedure in determining a complaint. He currently has the power to do this when he determines a complaint from a trade union member. For example, when dealing with a case, the Certification Officer determines what documents the parties need to provide, the timescales that need to be adhered to and how proceedings at a hearing will be conducted, in his own inimitable way. These minor and technical amendments will allow him similarly to regulate procedure in relation to any decisions he will be able to make without a complaint following the changes made in the Bill. I beg to move.
Amendment 12 agreed.
Amendments 13 and 14
13: Schedule 4, page 31, line 9, at end insert—
“ In section 256 of the 1992 Act (procedure before the Certification Officer), in subsection (1)(c), for the words after “declaration or” substitute “order under section 24B, 32ZC, 45C, 55, 72A, 80, 82 or 103 or under paragraph 5 of Schedule A3”.”
14: Schedule 4, page 31, line 37, leave out paragraphs 19 and 20
Amendments 13 and 14 agreed.
My Lords, as the Bill nears the end of its parliamentary journey, I want to take a moment to consider how far it has come since being introduced to this House last November. The Bill strikes a fair balance between the unions, whose work we all value, and their responsibility to society, especially to other working people—as patients, parents and passengers.
Noble Lords spoke eloquently about the case to change key aspects of the Bill, including on political funds, check-off and the Certification Officer. I am grateful for your Lordships’ active engagement and tireless commitment to finding an acceptable way forward on these matters. I want in particular to thank, on the opposition Front Benches, the noble Lords, Lord Mendelsohn and Lord Collins, and the noble Baronesses, Lady Smith, Lady Wheeler and Lady Hayter, and the noble Lord, Lord Stoneham, and the noble Baroness, Lady Burt of Solihull, for a very constructive approach. I have also valued the input from the Back-Benchers opposite and their advisers, and am pleased that the Government listened and responded and that the Bill is much better as a result.
I am also enormously grateful to many noble Lords across the Chamber for their passionate and intelligent contribution, especially to the noble Lord, Lord Burns—who sadly is not in his place—and the Select Committee on Trade Union Political Funds and Political Party Funding for the additional scrutiny and common sense that their work brought to this Bill.
Is the Minister in a position to tell us when the Government will respond in full to the recommendations of that Select Committee on which I served? It would be extraordinary if your Lordships’ House did have not a response before the completion of the whole process on this Bill. That would include all the recommendations of the Select Committee. She has referred to it as a splendid Select Committee; I assume she thinks all its recommendations are splendid, which would include not just the revised Clauses 10 and 11 but the link to discussions on party political funding. When will we get a response on that issue?
The noble Lord is, in his usual way, perhaps leaping to a conclusion I am not able to make, but I will take away what he said. The Bill will return to the other place and I will bear in mind the point that he has made, but I am certainly not in a position to respond today on the full panoply of the report. However, we have heard in this House how strongly people feel about all this, and the process, which was separate from the Bill, has been helpful in enabling us to edge forward on the Bill’s provisions.
I thank my noble friends Lord Bridges and Lord Courtown for their assistance and my noble friends Lord Sherbourne, Lord Robathan, Lord Callanan, Lord De Mauley, Lord King and Lord Leigh for their support, and of course my noble friend Lord Balfe, particularly for arranging for me to meet the smaller unions to complement my experience with larger unions such as USDAW, which has been mentioned today. That was a very important meeting. I express my appreciation to the noble Baroness, Lady Finn, for her support and expertise, and I thank the Bill team and my own private office for days and nights of hard work.
Once again, this House has demonstrated the huge value that its scrutiny adds to the legislative process and, as ever, I am pleased to have been a part of it. I look forward to returning this Bill to the Minister, Nick Boles, its main parent in the other place.
My Lords, I should like to add my own remarks on the conclusion of the Bill’s passage through this House. I thank the Bill team and all the staff who have worked hard on this difficult Bill. There is no doubt that if it had not been for this House and its method of scrutiny it certainly would not have been a good Bill. In fact, I am pretty certain that we will be returning to it following consideration of our amendments by the Commons. I thank the Minister for the way in which she has conducted herself. I kept mentioning the fact that she worked well in Tesco in an environment that involved partnership and working together and where trade unions are effective, and I know that she has visited USDAW on a number of occasions.
This Bill will impact quite severely across a number of issues, to which we will return. However, on a formal basis, I thank noble Lords opposite for their co-operation, particularly the noble Lord, Lord Balfe, and other noble Lords who have given consideration to amendments that have ensured that some of the worst elements of the Bill have been dealt with properly.
My Lords, I would like to add my words of thanks. However, the Bill now goes to another place. It has been amended significantly in this place and I hope that the comments that have just been made are not prematurely euphoric. I hope that when it comes back from another place the significant amendments passed on Divisions in this House will not be challenged, and we will then have a Bill in which we can all take some quiet satisfaction.
My Lords, I wish to make a few comments and add my thanks at this stage of the Bill. I congratulate the Minister on her courtesy and good humour during the passage of a Bill that we on these Benches have regarded as somewhat partisan. She has sought to cross that divide and we are grateful for the amendments she has persuaded the Government to accept.
The role of the Cross Benches has been very important. It has not been mentioned but the noble Lords, Lord Kerslake, Lord Pannick and Lord Burns have all played a very important part in the Bill and in achieving the amendments. I have enjoyed working with the Labour Benches and rekindling old friendships. I hope that it will be a basis for other matters in the future in this Session of Parliament.
We have regarded it as a very partisan Bill. We regret that it does not address the real issues for the country—the economy and productivity—and we hope that the Government will accept the amendments that the House of Lords has passed on political funds and electoral balloting when it goes back.
I, too, thank the Ministers for listening closely and attentively to the various suggestions made for improving the Bill. It has been a listening ministerial team and we are very grateful for that. It is an indication of what can be done in what in many ways is the more thoughtful part of the two Chambers of the body politic and parliamentary bodies of the United Kingdom constitution. I say that with no disrespect to MPs: they have their own pressures and their own electorates to satisfy, as well as many other things, and must pay attention to their party manifestos.
The House of Lords has the opportunity for more detailed, careful and objective consideration of measures that may be unwise—or which perhaps have been hastily drafted for various reasons—and can be improved. The link between the two Houses therefore is that if the House of Lords defers to the primacy of the House of Commons, one hopes very much that the House of Commons will defer to the intelligence and wisdom of the Lords in making suggestions for improvements through detailed amendments to some of the technical parts of this Bill, and that that will echo the co-operation between the two Houses. That, in other words, is what the noble Lord, Lord Cormack, referred to just now. It is an important matter in the future for all parties as well as those on the Cross Benches.
Bill passed and returned to the Commons with amendments.