Lawful Industrial Action (Minor Errors) Bill

David Nuttall Excerpts

Friday 22nd October 2010 Commons Chamber

[Mr David Nuttall (Bury North) (Con)]

May I thank you, Mr Speaker, for calling me to speak in this Second Reading debate? It is a great honour and privilege to have the opportunity to speak on this first Friday sitting of this new Parliament. Indeed, not only is this the first Friday, but I am the very first speaker to be called other than the promoter of this, the very first private Member’s Bill, of the many the House will no doubt consider, not only in this Session, but throughout this Parliament.

I should start by declaring an interest, in that I am the president of CAW—Conservatives at Work, which is the new name for Conservative Trade Unionists—for the north-west region. To be fair, it is some years since the name was changed, from the CTU, as it was back in the 1980s, to Conservatives at Work. The name was changed to reflect the fact that the organisation accepted not only members of a trade union. Indeed, there were many other members who had never been members of a trade union, but who were nevertheless interested in industrial matters and industrial relations generally. I have never been a member of a trade union myself, although—[Interruption.]

[Mr Speaker]

Order. There is a lot of chattering taking place. Whether Members are yet captivated by the hon. Gentleman’s speech I do not know, but they should certainly give themselves the chance. We need a more orderly atmosphere; this is rather unconventional. I call Mr David Nuttall, who I feel sure will shortly address the Bill.

[Mr Nuttall]

I will indeed, Sir, but I feel it important that I should declare my interest.

[Mr Angus Brendan MacNeil (Na h-Eileanan an Iar) (SNP)]

Is it the hon. Gentleman’s intention to talk out this Bill? Are we going back to the old tactics, or is he being constructive?

[Mr Nuttall]

I intend to take interventions, as is the normal custom in this House. I have no intention to speak at great length, but I look at it like this: the public out there expect the other side of the argument to be fairly put, and that is what I intend to do, because I am not persuaded that the Bill is merely a technical measure. Nobody would have gone to the time and trouble of bringing this matter before the House if it was such a trivial matter. It is not trivial; it proposes to change the law of the land. It deserves careful analysis and detailed examination, and that is what is going to happen on the Floor of the House this morning.

To return to the CTU, let us not forget that there are many members of trade unions who are not paid-up members of the Labour party. There are many who are members of the Conservative party, of the Liberal Democrats—I am sorry to see that they are not present in great number on the Government Benches this morning, although I hope that they will be here before too long—the Scottish National party or Plaid Cymru. There are also many—they may well be the majority—who are members of no party at all. I therefore do not regard this issue as a particularly party political matter; rather, it concerns good industrial relations.

For 16 years I was an employer. I ran a small solicitor’s practice, and in the end I was responsible, along with my partners, for employing 40-odd people, so I know quite a bit about employing people. I know a lot about keeping staff happy, and I know how important it is that there are good relations between an employer and an employee. Members of the CAW wanted to work with their trade unions to help their employers be successful. It is rarely the case that an employer can be successful if their employees are withdrawing their labour. The result is invariably that the company and the employees both lose out, and in the long run that is of no great benefit to either.

In the 16 years that I was running the firm, we never had any problems with the unions. To be fair, there was no unionisation, but they were free—[Interruption.] I always said that if any of the staff wanted to join a union, they were entirely free to do so. However, without being too immodest, I like to think that the fact that there was no unionisation was perhaps because we tried to be good employers and because the staff did not feel it necessary to join a union. They were quite free to do so, but as far as I can recall, none of them ever decided to withdraw their labour.

Let me declare a further interest, in that my brother is a merchant seaman. As will become apparent later, when I consider some of the detailed provisions in the Bill, that is particularly relevant, as the Bill seeks to amend subsections (2A), (2B) and (2C) of section 230 of the Trade Union and Labour Relations (Consolidation) Act 1992.

[Philip Davies (Shipley) (Con)]

Does my hon. Friend not think it strange that the Labour Government, who were in office for 13 years, made changes to the 1992 Act in 1999 and 2004, and yet on both occasions, when they were reviewing and amending the legislation, decided to leave those provisions intact? They thereby indicated that they thought that they were perfectly sensible. Now that Labour Members are in opposition, after 13 years of being in government, is it not bizarre that they seem to think that those provisions are no longer appropriate?

[Mr Nuttall]

My hon. Friend is quite right. I will have something to say on that later, although I should point out now that section 232B, entitled “Small accidental failures to be disregarded”, which the Bill seeks to amend, was actually introduced by the Labour Government, through the Employment Relations Act 1999. We can therefore safely assume that this measure, which was not originally in the 1992 Act, was one that the Labour Government wanted included in that Act.

Subsections (2A), (2B) and (2C) of section 230 of the 1992 Act contain special provisions relating to the requirements that are applicable to merchant seamen—who have special requirements owing to the nature of their work—who are also members of a trade union.

I genuinely congratulate the hon. Member for Hayes and Harlington on his perseverance with this measure. On Thursday 23 November 2006, almost four years ago, he came 16th out of the 20 successful Members in the ballot in that Session. He then decided to introduce the Trade Union Rights and Freedoms Bill, which was part of a campaign being pursued by the unions following the Trades Union Congress of 2005, which had passed a motion calling for a trade union freedom Bill in the wake of the dispute between Gate Gourmet and its catering staff at Heathrow airport. Members will note a common thread involving Heathrow airport and airport matters. One of the principal provisions of the trade unions’ motion was the simplification of the complex regulations on notices and ballots, which restrict the ability of unions to organise industrial action when a clear majority of members have voted in support. I do not agree that the regulations are necessarily complex.

The hon. Gentleman introduced his Bill on 13 December 2006, and it was scheduled for Second Reading on 2 March 2007 but, unfortunately for him, there was insufficient time for it to be considered. It was not given a Second Reading and it subsequently fell. I should add that the introduction of that Bill was followed by early-day motion 532, which stated:

“That this House recognises that free and independent trade unions are a force for good in UK society around the world and are vital to democracy; welcomes the positive role modern unions play in providing protection for working people and winning fairness at work; notes the 1906 Trades Disputes Act granted unions the legal freedom to take industrial action; regrets that successive anti-union legislation has meant that trade union rights are now weaker than those introduced by the 1906 Trades Disputes Act”—

I do not know whether that was a critical attack on Labour’s own 1999 and 2004 legislation. The motion went on to say that it

“therefore welcomes and supports the TUC campaign for a Trade Union Freedom Bill whose principles include better protection for workers, such as those sacked by Gate Gourmet in 2005, the simplification of ballot procedures and to allow limited supportive action, following a ballot, in specific circumstances; and therefore urges the Government to bring forward legislation to address these proposals.”

The motion was moderately successful, unlike some that attract only—

[Mr Speaker]

Order. The hon. Gentleman has now been on his feet for 15 minutes. I understand that he wanted, very properly, to declare his interests, and a modest preamble in situations of this kind is understandable, but I must gently say to the hon. Gentleman, who is a new Member, that this is not an occasion for a general discourse on the merits or demerits of trade unions or for the discussion of the Trade Union Rights and Freedoms Bill, which is not before the House this morning. It is the occasion for a focus on the specific content of the Bill before the House, which contains two clauses. I feel sure that the hon. Gentleman will now deal with those matters and remain focused on them for the remainder of his speech.

[Mr Nuttall]

Thank you, Mr Speaker.

[Mr Bone]

Will my hon. Friend give way?

[Mr Nuttall]

Certainly.

[Mr Bone]

I am genuinely undecided about how to vote today. I want to know whether the Bill has been introduced purely because of the ridiculous action that British Airways took, or whether there is a more general problem. I hope that this will come out in the debate. I do not think that we should make law based on one case, and I want to know whether there is a genuine problem.

[Mr Nuttall]

I thank my hon. Friend for his intervention, and I agree that this is important. I shall look at the case law shortly.

I shall turn to the detail of the Bill very shortly, Mr Speaker. The early-day motion was signed by 133 Members, including the previous Member for Bury North. The hon. Member for Hayes and Harlington is to be commended for his determination in bringing this Bill before us today.

The House must not take the Bill lightly. It contains just two clauses—one is substantive, the other deals with the short title and details of the commencement provisions—and there is a real danger that, because of its brevity, many Members might think that it is a trivial matter that can be disregarded. We should not take it lightly, however. There is a danger that, because its title contains the word “lawful” and, in parentheses, the words “minor errors”, we could be lulled into a false sense of security. Those words might suggest that it is a trivial piece of legislation that will merely tidy up some long-forgotten legislation that contained one or two technical errors, but nothing could be further from the truth.

[Andrew Bridgen (North West Leicestershire) (Con)]

Does my hon. Friend agree that the Bill is in fact a Trojan horse, out of which could spring lots of legislation that could lead to making the UK economy far less competitive, damaging industrial relations and the potential for growth in the economy in the difficult times ahead?

[Mr Nuttall]

My hon. Friend is absolutely right. There is a real danger that the Bill could be a Trojan horse. It could easily take us into new territory. It could also take us back to a previous era that many people outside the House thought they had seen the last of.

[Philip Davies]

My hon. Friend has a legal background, and I do not. The case being made by Labour Members seems to be that they do not think that judges should interpret the law, and that the law should be clear and straightforward. The Bill seems to be throwing us out of the frying pan into the fire, however, because it says that a judge has to accept a ballot if there has been “substantial compliance” with the provision in question. Can my hon. Friend tell me, in legal terms, whether there is a legal definition of “substantial compliance”? For example, would 51% compliance count as “substantial”, or would it need to be 60% or 80%? Or are we going to go straight back to having judges deciding what is substantial and what is not?

[Mr Nuttall]

My hon. Friend is broadly right. The Bill seeks to move the law from a situation in which the courts are asked to consider whether something is a small, accidental failure that should be disregarded to one in which they consider whether there has been “substantial compliance” with the law. I will come to that point in a moment.

I was just saying that I do not think that we should be lulled into a false sense of security simply because the title of the Bill refers to “minor errors”. The Bill is, I believe, worthy of comprehensive analysis and scrutiny if only because our constituents would rightly expect it. This Bill will not affect trade unionists alone; it will affect everybody and the lives of everybody affected will be blighted. One can only assume that the thrust of this proposed legislation is to make it easier for trade unions to organise strike action. That will affect—it will potentially affect; it could affect—every family in this country. That is why I believe the Bill deserves somewhat more detailed scrutiny. I appreciate that I am a new Member, so I might gloss over or miss things that others with longer service might not. They will be better placed than me to give it the examination that I think the Bill deserves.

[Philip Davies]

My hon. Friend made a good point when he said that the Bill’s title refers to “minor errors”. I believe that the Network Rail v. RMT case was cited in support of this Bill, but does my hon. Friend agree that balloting people from 11 signal boxes that did not exist, some of which had been shut down 44 years ago and one of which, on the union’s own admission, had burned down hardly constitutes a “minor error”?

[Mr Nuttall]

My hon. Friend is right. My concern is that if this legislation were allowed to proceed in this form, that sort of slipshod behaviour might be allowed to continue in future. I submit that one reason why a line of cases has been brought before the courts is that employers have upheld the will of this House and have sought to secure full compliance with what was originally intended. I stress again the importance of what was intended not by the 1992 Act but by the Employment Relations Act 1999, which was introduced by the Labour Government.

In his opening remarks, the hon. Member for Hayes and Harlington said—I agree with him—that we begin to understand the full effect of this proposal only by looking at the legal framework in which employees and employers operate. The starting point is the contract of employment itself. Under such a contract one individual, the employee, provides his or her services or labour for the benefit of another, the employer. In return, they are paid for the labour they provide. The work is manual labour in some cases or it could be “white collar” work, as we call it, or it could be providing expertise on a particular subject. It follows that withdrawal of that labour is a very serious matter and, unsurprisingly, the law attaches serious consequences if someone breaches that agreement, as it does with any other breach of contract,.

[Henry Smith (Crawley) (Con)]

Is it not the case that elections are held by other legal entities, such as public limited companies or national organisations, and are sometimes used for trustees and so forth? With those other legal entities, is it not the case that complete compliance with the law is necessary, rather than “substantial compliance”—whatever that vague term means legally?

[Mr Nuttall]

My hon. Friend is absolutely right. In most areas of the law, people are quite rightly expected to follow it to the letter. In the particular area of trade union law, the possibility of human error coming into the process is taken care of, I submit, by the provisions of section 232B of the 1992 Act, which specifically allows for minor, small, accidental failures to be completely “disregarded”. That raises the question of why on earth this Bill is being introduced at all, particularly following the decision of the Court of Appeal in the British Airways plc v. Unite case earlier this year. I accept that it was only a majority judgment, but it was nevertheless a judgment of the Court of Appeal, so it should be given time to bed down, as it put forward a fairly clear view of the law.

[Andrew Bridgen]

Can my hon. Friend think of any other aspect of the law where “substantial compliance” is considered sufficient?

[Mr Nuttall]

There are various areas of the law. We have a de minimis rule, for example, which covers cases where there has been a trivial or minor breach. The judges will often overlook such a trivial or minor error if it could be construed as complying with the de minimis exclusion for understandable human error.

[Jacob Rees-Mogg (North East Somerset) (Con)]

I thank my hon. Friend for giving way so graciously and so often and for elucidating so many points in this debate. Does he agree that it is only right that trade unions be held to the highest standard of accuracy in holding these ballots, because they get a special exemption from the contract law to which their members would otherwise be subject? As they are getting an exemption under the law, should they not be required to do things absolutely properly? Perhaps the Bill should be amended to tighten the regulations rather than to loosen them.

[Mr Nuttall]

My hon. Friend is absolutely right. I was about to come on to the history of how we arrived at where we are today, albeit briefly as I do not want to go too far back. It is important to remember that a couple of hundred years ago it was completely illegal for workers to join together at all. We have now happily moved on, but there is perhaps a case for tightening trade union legislation, and I believe that a number of other matters could be more usefully included in the Bill. I assume that people in the trade union movement want to see it prosper, go forward and make itself ready for the 21st century.

[Charlie Elphicke (Dover) (Con)]

Does my hon. Friend think that now is the time to be passing legislation to make it easier to strike, when we need to pull ourselves out of this massive recession the country has had to face, thanks to the shambolic economic policies of the Labour Government? At another time in the future, when the country is perhaps doing better—

[Charlie Elphicke]

It is not nonsense; it is accurate. It was Labour Members who caused the recession and now they are trying to make it easier to strike. That is not a fiscally responsible thing to do.

[Mr Nuttall]

I thank my hon. Friend for that intervention, which highlights the real danger. He strikes to the heart of the matter, because as the nation tries to emerge from the recession, we need to do everything we can to put dynamism back into British business. The last thing that we want is a return to the dark days of the 1970s, and the problems of the 1980s, when the news headlines were dominated by industrial unrest and strife. If those days returned, the economic competitiveness of British business would be damaged, and that would be good neither for this country nor for trade unions in general.

[Philip Davies]

I want to drag my hon. Friend back to the point made by my hon. Friend the Member for North West Leicestershire (Andrew Bridgen) about the Bill’s terminology of substantial compliance. Does he agree that it would be interesting if Labour Members accepted substantial compliance as the basis for legislation generally? For example, in the case of a major health and safety problem at work, would their presumption be that the employer should face no sanction if that employer had displayed substantial compliance throughout the rest of the year. Does my hon. Friend agree that the concept of substantial compliance might have merit after all?

[Mr Nuttall]

I am sure, Madam Deputy Speaker, that Mr Speaker is most upset that he has not been able to stay and listen to the rest of this interesting debate, but he will be able to read it later.

I thank my hon. Friend the Member for Shipley (Philip Davies), who raises an interesting question. The point was made earlier that the provision might be a Trojan horse. If we go down the path of referring to matters as substantially complied with, or saying that, taken together, there has been substantial compliance, there is a danger that it leaves open a gaping hole. What is not substantially compliant? What should we do if someone complies with their health and safety policy for 51 weeks, but not in the other week? Such an approach does not make sense. During detailed examination of clause 1(3), I shall consider whether the Bill takes us any further forward.

[Andrew Bridgen]

Does my hon. Friend agree that the problem is not just with substantial compliance some of the time, but with the fact that some groups will be allowed substantial compliance, whereas other groups will have to adhere to complete compliance all the time?

[Mr Nuttall]

My hon. Friend is right. I can well understand those who comply with the law for all of the time not being too happy about other groups being allowed to comply with the law for only part of the time. The rest of the time they can say, “Well, we have substantially complied with the law.” What should we do with a burglar who said, “Well, I’ve been substantially compliant with the law for 364 days of the year, but today I happen to have fallen foul of the law”? Should we let him off? What absolute nonsense.

Any employee who breaches their contract of employment leaves themselves open to the risk of being found liable, under the law of tort, to their employer, for breach of contract. That applies whether the contract is for unskilled manual labour, skilled manual labour, or what is often termed white collar services. The liability applies equally to those organising industrial action, such as—but not necessarily exclusively—trade unions, because those concerned will seek to procure a breach of contract, which is a tort under English law. Under those circumstances, both individuals and trade unions risk incurring liability to the employer. I add that there is also a potential liability to third parties. In individual terms, the employee is also, of course, liable to be dismissed.

Only through the protection afforded by statute can employees and trade unions escape the consequences of their actions in withdrawing their labour and breaching the terms of their contract of employment. That was first accepted, as the hon. Member for Hayes and Harlington mentioned, as long ago as 1906 when the Trade Disputes Act was passed. Prior to that, the common law provided that trade unions were liable to claims for damages for inducing a breach of contract. The 1906 Act granted them immunities from those liabilities. As I mentioned in response to my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg), 100 years earlier the Combination Acts of 1799 and 1800 made it illegal for workers to join together and press employers for shorter hours or increased pay. Those Acts remained on the statute book until 1824 when they were repealed, to be replaced by the Combination Act of 1825.

[Philip Davies]

Does my hon. Friend agree that when we consider what is fair and reasonable in such legislation, part of the equation that should be considered, and that appears to have been considered in cases such as British Airways v. Unite, is the impact of the strike action on the business and its customers? If, as in the case of Unite, there is an attempt to wreck Christmas holidays for over 12 days, which would have affected British Airways and its customers to a devastating extent, the highest possible standards must be expected of unions in such circumstances.

[Mr Nuttall]

rose—

[Madam Deputy Speaker (Dawn Primarolo)]

Order. May I gently remind the hon. Gentleman about the remarks made at the beginning of this debate about a new way of debating in the House? He has been speaking for nearly 40 minutes. If he has set the scene, I would be grateful if he now dealt with the details of the Bill.

[Mr Nuttall]

Thank you, Madam Deputy Speaker. I will indeed. If I may, I will deal briefly with the intervention made on me, and then bring us up to date and consider the detail of the Bill.

[Madam Deputy Speaker]

Order. I hear what the hon. Gentleman says. He has set the scene, so he can deal with the intervention. However, I then expect him to address his remarks to the Bill.

[Mr Nuttall]

Thank you, Madam Deputy Speaker. I will indeed.

My hon. Friend the Member for Shipley (Philip Davies) is right about the devastating effect of industrial action such as that to which he referred. In the case in question, it looks as though the action was specifically arranged and organised to hurt people who had waited all year for their holiday. Therefore, it is not surprising that the law drawn up in 1999 should expect the highest standards of compliance. In view of what you have said, Madam Deputy Speaker, I will skip over the next portion of my remarks. Let us jump forward to the late 1970s. I think that this is relevant, because that was the time when trade union powers reached what could be described as their zenith.

[Andrew Bridgen]

Does my hon. Friend agree that the fact that Bill seeks to send industrial relations between employees and employers back to the late 1970s should come as no surprise, given that the new Leader of the Opposition seeks to swing the politics of the Labour party back to that time, and that the great consolation for Conservative Members is that Labour will therefore be out of government for a very long time?

--- Later in debate ---

[Madam Deputy Speaker]

Order.

Let me also remind the hon. Member for Bury North (Mr Nuttall), before he rises to reply to his hon. Friend’s intervention, that I have already told him very specifically that, having spoken for after 40 minutes, he should end his general remarks and begin to deal with the contents of the Bill. Before he replied to the earlier intervention, he assured me that he would do that, but he then broadened the debate. I should be grateful if, in replying to the intervention from the hon. Member for North West Leicestershire (Andrew Bridgen), he would refer directly to the Bill.

[Mr Nuttall]

I certainly will, Madam Deputy Speaker. To be fair, I think that I have already dealt with my hon. Friend’s point. I agree that there is a danger that that will happen if the Bill is allowed to proceed in its current form. However, I think it relevant to point out briefly—very briefly, and for the good of the trade union movement—that trade union membership has halved since the 1980s, from 13 million to 6.5 million. I fear that if the Bill were allowed to proceed and a further period of industrial unrest were to follow, there could well be a further decline, perhaps—although it is not for me to say—a terminal decline in union membership.

Let me now do what you have rightly asked me to do, Madam Deputy Speaker, and turn to the detail of the Bill.

[Charlie Elphicke]

Given that the Court of Appeal reversed the injunction in the British Airways case, does my hon. Friend think that the Bill is necessary at all?

[Mr Nuttall]

No, I do not. We have not yet had time to see the details of the Court of Appeal’s decision in the case of British Airways plc v. Unite. The court’s judgment, which was quoted by the hon. Member for Hayes and Harlington, was quite clear in regard to the effectiveness of the law.

There has been such a long line of cases of this kind, and it is interesting to note that time and again they have involved the same union: Unite. One would think that by now Unite, and the people whom it employs to conduct the ballots, would have learned how to do it, but apparently not. The Master of the Rolls recognised that. Delivering his dissenting judgment in the Court of Appeal, he said that he agreed with Mr Justice McCombe, who had delivered the earlier judgment in the Queen’s bench division. He said that he did

“not consider that the Union has a good prospect of establishing at trial that it complied with section 231. On the contrary, I would not regard its prospects as promising.”

He reached the conclusion that

“the requirements of section 231 seem…at least as at present advised, to be unnecessarily prescriptive and strict, particularly insofar as they can be relied on by the employer and particularly in a case such as this… Having fallen foul of the technical rules of the 1992 Act in a ballot a few months earlier, the Union might have been expected to take particular care over complying with all those rules in what was effectively a rerun of that ballot.”

So there we have it: the Master of the Rolls saying in terms that the union had had one chance, and had got it wrong. A few months later it did effectively the same thing, and got it wrong again. My hon. Friend the Member for Dover (Charlie Elphicke) is quite right.

Let me now return to the detail of clause 1, which seeks to amend section 232B of the Trade Union and Labour Relations (Consolidation) Act 1992. Subsection (2) would add the words “or notice”. Previously compliance had been required only if a ballot had been held, but sections 226 to 230 require notice to be given to the employer as well. Section 226A requires the notice to be given

“not later than the seventh day before the opening day of the ballot”,

and to be

“received by every person who it is reasonable for the union to believe”

should receive it.

In considering whether this is a sensible provision, I ask myself why notice should not be given to all the other people who would be affected. I would consider it sensible for the Bill to require it to be given not just to the employer, but to others who would be affected by the union’s actions, such as post office and railway users’ groups. Section 226 states that it would help the employer to be able to make plans and bring information to the attention of some of his employees, because other employees might be seriously affected if half their colleagues walked out on strike. It is entirely right that there should be compliance—full compliance—with the requirement for notice to be given.

[Andrew Bridgen]

Compliance with the notice period is essential because, as my hon. Friend has pointed out, there are suppliers downstream and users upstream of the business who need to be informed of potential industrial action.

[Mr Nuttall]

Indeed. The time is needed so that other people—not just other employees—can be notified. Deliveries may need to be stopped, and customers may be waiting for those deliveries.

There is a strong argument for increasing the notice period. Section 226A(1)(a) requires only seven days’ notice, which is not very long. It will include a weekend, so there will be only five working days. That is not a long time in which to make all the necessary preparations, especially when the company involved has never experienced a strike before and does not know what to do. There will be a lot to be done in those seven days. There is a lot of merit in the argument that the period should be extended to 14 or 28 days, so that people know where they stand if a union starts to take industrial action.

[Charlie Elphicke]

My understanding—correct me if I am wrong—is that the substantial compliance provision would allow for exemption from section 234A of the 1992 Act, which deals with the notice to employers of industrial action. Does my hon. Friend think that substantial compliance might be a notice sent in the post but not delivered? Is that substantial compliance or not? Should not an employer receive actual notice and have some certainty about that?

[Mr Nuttall]

My hon. Friend makes an interesting point, which we will look at in more detail when I look at the next paragraph of the subsection. The problem with the Bill is that it not only introduces the novel concept of substantial compliance, but extends the scope of the 1992 Act to cover not just the ballot but the notice provision. Therefore, it is doing two things at the same time. Incidentally, the provision also extends the number of sections to which the exemption applies, which we will look at later.

May I move on to subsection (1)(b) of section 232B, which states that the failure will be disregarded if

“the failure is accidental and on a scale which is unlikely to affect the result of the ballot”.

It seems that, when the 1992 Act was amended, the then Labour Government knew exactly what they were doing. They were providing for minor errors to be discounted. In section 232B, they specifically allowed for a failure which is

“accidental and on a scale which is unlikely to affect the result of the ballot or, as the case may be, the failures are accidental and taken together are on a scale which is unlikely to affect the result of the ballot”.

That seems to be straightforward and simple to understand.

[Philip Davies]

It may be straightforward to someone as intelligent as my hon. Friend, but may I ask him to clarify the matter for those of us who do not have his intellectual capacity? Does the law as it stands say that the failure would be disregarded if it were, “accidental and does not affect the ballot” or does it say that it would be disregarded if it were “accidental or does not affect the ballot”? If the problem in the vote were not accidental, presumably it would not matter if it made any difference, because the union would have to meet both tests: the failure would have to be accidental and not make any difference. Can he clarify whether both tests have to be met at the moment?

[Mr Nuttall]

I thank my hon. Friend for that intervention. The position is more complex perhaps than I originally intimated. Section 232B(2)(b) says that, in relation to a ballot, if there is a failure or there are failures in respect of a provision mentioned in subsection (2) or other provisions, and the failure or failures are accidental and on a scale that is unlikely to affect the result of the ballot, those can be disregarded. It is worthy of note that the section already makes provision not just for a single failure but for failures, so it already provides for more than one failure. There could be several failures and the law accepts that at the moment. It accepts that there could be multiple failures and the existing legislation would still potentially allow those to be disregarded by the courts, as happened in the case that has been so often referred to this morning—the case of British Airways plc v. Unite. There were a number of errors. The Court of Appeal, by a majority, decided to allow the appeal and discharged the injunction that had been obtained at first instance by the court.

[Andrew Bridgen]

Does my hon. Friend agree that the Bill effectively will give special rights, privileges and concessions to unions that are not given to any other groups in this country?

[Mr Nuttall]

My hon. Friend is right. The concept that is introduced by the proposed amendment to section 232B of “substantial compliance” is a novel concept. I have not heard in the opening remarks in the debate about any other legislation where that is referred to, and therein lies quite a major problem with this legislation.

I turn to the crux of my argument.

[Philip Davies]

This appears to get down to the nitty-gritty of what is accidental. It seems to me from the judge's summing up that Unite got it wrong in its dispute with BA. The judge said that he thought that

“it therefore seems clear that the union was aware, or certainly ought to have been, that the figures provided to BA in the ballot notice included a substantial number of those who were shortly to leave on voluntary redundancy, and therefore included members who the union could not reasonably have believed would be entitled to vote in the ballot.”

In that case, the mistakes might have been minor, according to the interpretation of the hon. Member for Hayes and Harlington (John McDonnell), but they certainly could not have been accidental if the union was balloting people whom the judge ruled it should have known, or did know, were not entitled to vote.

[Mr Nuttall]

My hon. Friend makes a valid point. One of the problems with the interpretation of the clause relates to what is accidental and what is not. I submit that we are going to have exactly the same problem if we change the law and introduce the concept of substantial compliance. We are not any further forward than we were.

[Henry Smith]

Does my hon. Friend think it in order that the House should legislate to allow for incompetence, whether accidental or deliberate?

[Mr Nuttall]

I thank my hon. Friend for his intervention. I certainly do not think that it is appropriate that the House should legislate for incompetence, and effectively that is what this Bill is leading towards. It is effectively saying that there could be 70%, 60% or 80% compliance with the law and that would be okay. I might be wrong, but I am of the opinion that members of the public outside this House rightly expect a trade union, or indeed, as my hon. Friend the Member for North West Leicestershire said, any other group, to comply with the law to a much higher degree.

I think the degree of compliance should be 98% or 99%, which was the intention in 1999 when the then Labour Government introduced section 232B providing for small accidental failure to be disregarded. The new provision refers to

“the failure…or the failures taken together”,

so it mirrors the current situation in that duplicate failures would be permitted. It also states that

“there has been substantial compliance with the provision or provisions in question”

and

“on a scale which is unlikely to affect (in the case of a ballot) the result of the ballot or…a reasonable recipient’s understanding of the effect of the notice”.

The problem is that that provision takes us no further forward. Employers are just as likely to say, “Well, has there been substantial compliance or not?” It is not clear, so we are no better off than if we were to ask whether there had been a minor or accidental failure. Therefore, this provision will prove to be a treasure trove for lawyers.

[Philip Davies]

Given that the purpose of the Bill is to try to avoid any misunderstandings, does my hon. Friend agree that it would have been more helpful if the hon. Member for Hayes and Harlington had included a definition of substantial compliance? If he had, we might have avoided some of these problems.

--- Later in debate ---

[Mr Nuttall]

My hon. Friend is right. One of the defects of the Bill is that there is no definition of what constitutes substantial compliance under the law; we have no idea at all about that.

The current law is particularly detailed, however. For example, section 226A of the 1992 Act requires that a union must give notice

“not later than the seventh day before the opening day of the ballot”

to

“every person who it is reasonable for the union to believe (at the latest time when steps could be taken to comply with paragraph (a)) will be the employer of persons who will be entitled to vote in the ballot.”

All sorts of questions arise, such as what happens if someone is set to become an employee but is not working on the day? They will never have a chance to vote; are they to be included or not? I do not want to address all these questions today. I simply put that one as an example of the problems that will arise if the Bill is enacted.

[Henry Smith]

Does my hon. Friend agree that that is precisely why the 1999 and 2004 legislation introduced by the previous Government—to whom I do not give credit for very much—did not allow for substantial compliance? The point my hon. Friend makes illustrates precisely why they saw the sense in not allowing for that.

[Mr Nuttall]

My hon. Friend hits the nail on the head. Back in 1999 there was a new Labour Government with a substantial parliamentary majority, and they could very easily have introduced a measure along the lines of the Bill, but they did not do so because it is a bit of a dog’s breakfast. It is not clear what substantial compliance means; there is no definition in the Bill and our attention has not been drawn to any previous case law or to any academic analysis of what would or would not constitute substantial compliance.

[Andrew Bridgen]

Is not the crux of the matter that if substantial compliance had been fully defined in the Bill, that would merely move the legal argument on to the question of whether actions might or might not be likely to affect the ballot?

[Mr Nuttall]

My hon. Friend is right. Whether or not something may or not result in the ballot being affected is a very moot point indeed, and it could exercise the courts for a very long time.

I think there is a danger that the lawyers are sitting out there rubbing their hands with glee, because when they see the Bill they must think, “Marvellous! We’ve almost run our course in respect of the 1992 and 1999 legislation, which has been to the Court of Appeal, but we are now going to move back to square one and start again. We can spend hour after hour in the Queen’s bench division and then the Court of Appeal.” The issues will not be dealt with in, say, Uxbridge county court.

[Philip Davies]

Returning to the point made by my hon. Friend the Member for Dover (Charlie Elphicke), is there not an irony here in that the hon. Member for Hayes and Harlington has introduced the Bill to benefit his friends in the trade unions and they have got a Court of Appeal decision that is favourable to them that they could presumably use in further cases as case law, yet he wants to scrap that judgment, which eventually found in their favour, to introduce a new element to the law that is uncertain? If the hon. Gentleman wants to help his friends in the trade unions, should he not leave the law as it stands with this clear verdict from the Court of Appeal, rather than try to introduce a new Bill that introduces new uncertainty? He is not even helping the people his Bill is designed to help.

[Mr Nuttall]

Absolutely. My hon. Friend is right that there is a real danger that this Bill will not only move industrial relations back three decades, but will move the analysis of the case law back to square one—back to 1992 or 1999. We will be starting with a blank page, and the lawyers will be able to say, “Well, here we are. All past judgments are out of the window because there is now a new piece of legislation.” All the previous cases that have been cited this morning will, effectively, be made redundant because the measure that has been tested before the courts on several occasions will no longer be on the statute book, and we will be faced with a new measure that has never been tested before the courts. It will not be long before an employer is required to put the matter to the courts for a decision and, as I said, these are not matters that could be dealt with in a county court. They would inevitably have to be dealt with in the High Court. They would then be appealed to the Court of Appeal for civil cases, and who knows whether they would go on to the Supreme Court. They would be lengthy and expensive actions, and I submit that we would be no further forward in having clarity in the law—which, after all, is why we are here in Parliament. We thought we had nearly got there in the case of British Airways v. Unite earlier in the year. If we now go back to square one, we will be no further forward.

[Philip Davies]

I am pleased my hon. Friend agrees with me about that. However, has not the hon. Member for Hayes and Harlington reasonably identified that the crux of the BA case is the definition of accidental? It was the judge’s view that in this case accidental did not mean unintentional—that there was not enough to satisfy the demands of the law. If the hon. Gentleman wants to deal with the BA problem, to which he referred at length in his speech, would he not be better off just amending the law to give a definition of accidental, rather than going back to the drawing board and introducing a completely new concept altogether?

[Mr Nuttall]

My hon. Friend is right, because rather than deal with the matters raised in the judgment, such as the definition of “accidental”, the Bill seeks to introduce a novel concept of whether there has been “substantial compliance” with something.

I shall now deal with the next subsection, if Madam Deputy Speaker will allow me. Subsection (5) deals with the burden of proof. The existing legislation under section 232B of the 1992 Act contains no subsection (5), so this would be a new insertion into the original provision. Subsection (5) states:

“In any proceedings in which reliance is placed on this section, any failure to comply with a provision mentioned in subsection (2) is to be treated as meeting the terms of subsection (1)(b) unless the contrary is proved.”

In simple terms, that means that the burden of proof is being placed completely on the employer, who will have to prove this novel concept of what constitutes “substantial compliance”. As has been said this morning, that arrangement is entirely the wrong way round. It is and has always been incumbent on the trade unions to show that they are complying with the requirements of the law, because it, unusually, exempts them from the liabilities that otherwise exist under British law.

[Brandon Lewis (Great Yarmouth) (Con)]

Does my hon. Friend agree that the problem with having the onus on the companies and the employers is that that imposes a huge responsibility and potential cost on them in tough economic times, because they will have to try to prove something and get information to which they do not have easy access? That is why the onus in the Bill is completely the wrong way round and why the onus should remain on the unions.

[Mr Nuttall]

My hon. Friend is absolutely right about that point, although I had not thought of it, because employers face having to start delving into matters into which they will probably never have delved and that could be, as he says, a very expensive and time-consuming business. It would be far better for employers to get on and deal with the job that they are there to do, which is to try to run their businesses and companies profitably.

Subsection (5) deals with the burden of proof and makes it the job of the employer to prove that there has been a failure of “substantial compliance”; it puts the burden of proof on the employer. I submit that it is the job of the trade union to prove that it has complied with the rules. I sometimes refer to this as the 51:49 rule, because proving something on the civil standard of the balance of probability means that on a 51:49 balance it is more likely than not to have occurred. I believe that I am right in saying that we were told during the opening remarks of the hon. Member for Hayes and Harlington that proving this was not difficult, but if that is the case, it is not difficult for the trade unions to prove that they have substantially complied with whatever provision they are alleged not to have complied with. As we have said, what does or does not constitute substantial compliance is a matter of great debate. For example, has there been substantial compliance where a notice has been sent but not in the right form or where it has been partially or badly photocopied?

[Charlie Elphicke]

Will not the reversal of the burden of proof and the introduction of this wholly uncertain new test be very counter-productive, because we have such strong and well-understood case law and precedent in this area that this approach might damage the position of trade unions?

[Mr Nuttall]

There is a real danger of that. One of the reasons why it would be wrong for us to pass this Bill in its current form is that it would damage the standing of the trade unions. There is a real risk that they will find it more difficult to recruit new members if they are seen to be moving back to the 1970s, and if there is such a return, there is a real risk that our economic competitiveness will be damaged. Before I deal with which groups might be affected by this measure—it is important that we examine that and consider who will be affected outside this House if the Bill is allowed to pass into law—I shall address the requirements of subsection (5). Placing the burden of proof on the employer would be a major change and such a provision was not in the previous legislation. I have heard no good reason this morning why it would be a sensible way to proceed.

Clause 2, which deals with the short title of the Bill and commencement, is relatively uncontroversial. However, it might be suggested that the period of one month before the legislation comes into force is not sufficient. Clause 2(3) contains a fairly unusual provision. It states:

“This Act applies in relation to industrial action taking place (or proposed to take place) on or after the day on which it comes into force.”

That leaves the definition of what “proposed to take place” means open to some doubt.

[Jacob Rees-Mogg]

Does my hon. Friend agree that the clause is particularly dangerous, because it allows errors that have been made, which may or may not have been considered to be substantial before, to be reconsidered after the fact? It is most unsuitable to legislate in that way, so the clause is one of the worst in the Bill.

[Mr Nuttall]

My hon. Friend is quite right. It is slipped in at the very end, in the last couple of lines of a clause that might otherwise be uncontroversial and remain unconsidered. I might have overlooked it, were it not for the fact that in parentheses, it says

“or proposed to take place”.

That changes the whole ballpark of the meaning of the clause. One could understand if action were actually taking place—that would be quite understandable, and we can see whether someone is on strike or not—but where there is a requirement to consider whether it is proposed to take place, who makes the proposal? Is it someone who has proposed action in a branch meeting? Should it be proposed at a national level? Should there have been a ballot? Should there have been notification? How far down the line does it have to have gone before it is regarded as an proposed action? What happens if one union member has proposed it to his mate? Is that regarded as a proposal for action? The whole Bill is a minefield; it is a treasure trove for lawyers and I submit that in its current form it will do nothing to help trade unions and industrial relations in this country.

Before we go further, we should consider the groups that will be affected by this Bill. Principally, four groups will be affected. The first group is the trade union members. Some members might have their views excluded because, if one assumes that the thrust of the Bill is to make it easier for mistakes to be made—that is what we are talking about; we are making it easier for people to be missed out—there will be a greater likelihood that ordinary trade union members will not have their views taken into account. They will quite rightly ask why they are being denied a say, and they are certainly a group that we should have in the forefront of our minds when we are deliberating on which way we should vote on this Bill.

The second group is the trade union members who are consulted. Regardless of whether they are consulted in support of or against any particular proposed industrial action, there is a real danger that their hard-earned moneys, which are paid over as union subscriptions and union dues, will be wasted and lost in the pockets of the lawyers and in payment of court fees while day after day is spent debating in the courts the merits and demerits of the Bill.

The third group is the employers. Where is the line to be drawn? The law already allows small accidental failures to be disregarded and it is reasonable to assume that the Bill is seeking to relax those provisions. It does prompt the question of what degree of error is now to be disregarded. I would ask the House to accept that as the current description is “small”, the proposed disregard must by definition be a level higher than “small”. The question is what degree of disregard is greater than “small”. Is it, for example, “quite small”, but not “small”? Is it “little”, but not “small”? Is it “modest”, but not “small”? Perhaps it is not “quite small”, “little” or “modest”, but in fact—I suspect that this is where the law is intended to go—quite a major failure. We are moving towards “substantial compliance” allowing for quite major failures of the law and allowing fairly major breaches of the law to be disregarded. That cannot be right.

[Brandon Lewis]

A couple of issues come to mind. Does my hon. Friend agree that as well as moving employers into a position where the onus would be on them, so they could be seen as aggravating the situation by doing research into any potential disregards, there is also the chance—as he has said—that although what is currently seen as being small is hard to define, if it is in law it has the ability to grow even once it has been refined? What we see as small in one case might become larger and larger as time goes on. The value of members who are unable to use their vote and are not given the opportunity because of an accident or mistake is devalued, rather like constituencies in which we have more people with less value to their vote.

[Mr Nuttall]

My hon. Friend makes a reasonable point. One difficulty in defining a small or minor error is the size of the electorate. Something that could be regarded as a small error that could be safely disregarded in one trade union would not be appropriate as a matter to be disregarded in another trade union. Even when a conclusion has been reached in proceedings that might at first sight result in apparent settlement of the law, that is not necessarily the case if the union involved is the size of Unite rather than the size of the garment workers’ union, which might have nowhere near the same number of members. This is an important issue that will affect employers and the law will not be clear even after the Bill is passed.

[Andrew Bridgen]

Perhaps I could bring to my hon. Friend’s attention another complication that might not have been considered of the possible implications of this Bill. If we move the burden of proof from the unions to the employers regarding substantial compliance with the provisions and the phrase

“on a scale…unlikely to affect”,

does my hon. Friend agree that there could be a field day for the lawyers when employers, perhaps reasonably, claim that the unions have not complied fully by providing them with the information they need to decide whether there has been substantial compliance with the Bill or whether any errors are on a scale unlikely to affect the Bill’s provisions? Would that not therefore require further legislation to give employers the rights to obtain the information from the unions in a reasonable, timely and full fashion? That is yet another field day for the lawyers and, yet again, will fail to achieve the aims of the Bill.

[Mr Nuttall]

My hon. Friend is quite right. That is a point that I did not consider fully—I apologise for that—when going through clause 1(3). There is a risk that that subsection, taken together with subsection (5), will mean that the employer now has the problem—it will be a problem—of bringing before the courts evidence that there has been substantial compliance or non-compliance. All the evidence might well be in the hands of the trade unions, and it will be very difficult for an employer to be able to satisfy a court and, under this Bill, they would have that responsibility. Employers would have that burden placed on them. How on earth can they be expected to fulfil and meet that requirement when the information is in the hands of the trade unions? As my hon. Friend reasonably and rightly says, it would perhaps be more understandable for there to be a provision in the Bill to require the information that the court needed to be handed over so that there could be no doubt that there was a full requirement for the trade unions to hand over to the employer all the relevant information to enable the employer to submit an action to the court. Without that information, the employer would have no reasonable basis on which to instruct their solicitor, and there would be no way for a solicitor to instruct counsel, because they would not have the facts and figures to enable them to make their case.

[Charlie Elphicke]

My hon. Friend is making a technical and detailed speech, but do I understand his case correctly? Is it that the Bill will create uncertainty for trade unions and employers, and that it will benefit lawyers and result in a massive wodge of cash for them? That is just what happened when the previous Government handed over all coal compensation cases to a bunch of lawyers. Surely that is unacceptable.

[Mr Nuttall]

My hon. Friend makes a good, reasonable point. The law would not be clarified in any way by the Bill, but there is a real danger, as I have pointed out, that it would take us back to the situation we faced in the 1970s and 1980s. Much of the case law would be made redundant, and we would face yet more legal actions—

[Madam Deputy Speaker]

I know that the hon. Gentleman wants to make a number of points on the Bill, but he is repeating himself; he has come back to those points on a number of occasions. Perhaps he could carry on with the rest of his comments, rather than telling the hon. Member for Dover (Charlie Elphicke) what he has already said.

[Mr Nuttall]

I will indeed. I was just dealing with the intervention.

[Philip Davies]

Although my hon. Friend the Member for Dover is right, the category of person that appears to be in danger of being ignored in this debate is not the trade unions or employers but the paying public—the customers. At the end of the day, it is they who are most inconvenienced by all the strike action. Does my hon. Friend the Member for Bury North (Mr Nuttall) accept that if the Bill were to have a Second Reading today, it is not the impact on trade unions or employers that should be at the forefront of our mind, important though that is, but the impact on the customer and the paying public?

[Mr Nuttall]

My hon. Friend is quite right. He has perhaps anticipated my fourth point. I was about to say that fourthly, and perhaps most importantly, there is the question of the paying public, who would be the ones most affected by the changes. I am concerned that if the law is changed, we will see a return to the dark days of the 1970s. I am concerned for my constituents in Bury North—for the working mum who is forced to make last-minute arrangements for child care because teachers have gone on strike; for the small business man who is waiting for a customer’s cheque to arrive, and who faces the ruin of his business because the postmen have gone on strike; for the taxi driver who needs to renew his licence, and faces the loss of his livelihood because he is preventing from renewing it because the officials in the town hall are on strike. I could go on and on; there are so many categories affected. Earlier, we touched on the family who save for, and look forward all year to, the one holiday that they have, and who are then denied the opportunity to go because one small group of workers has withdrawn its labour and gone on strike.

The law as it stands cannot be that difficult to comply with. The 2009 “Annual Abstract of Statistics” issued by the Office for National Statistics has details of how many working days were lost through labour disputes by industry in 2009. It shows that in transport, storage and communications, 657,000 working days were lost. In public administration and defence, 325,000 working days were lost. The figure was 31,000 in education; 16,000 in manufacturing; 5,000 in health and social work; 4,000 in other community, social and personal services; 2,000 in construction; and 2,000 in other industries and services. So it is not impossible to comply with the law as it stands. All those industrial disputes were able to proceed, quite lawfully, under current legislation.

Let me conclude by saying that the Bill risks taking the trade union movement back to the 1970s and ’80s. I submit that it represents a huge missed opportunity to modernise the trade union movement. It tries to simplify existing legislation, but it runs the risk of creating new uncertainties. It introduces the concept of “substantial compliance”; and, as I say, lawyers must be rubbing their hands with glee at the thought of spending more time in court. Those words would have to be tested in the courts, because we know nothing of what they actually mean.

The Bill does nothing about the underlying problem that it seeks to solve. It does nothing to help the trade unions, or those engaged by them, to conduct the ballot in accordance with the letter of the law. After all, the issue is the will of Parliament and ultimately, therefore, the will of the people. The level of compliance is set where it is because that is where the public want it to be. For the sake of hard-working families who fear having their everyday lives disrupted by a return to the disastrous days of some three decades ago, we should not allow the Bill to proceed.

Having considered the merits and principles of the Bill, I am not persuaded that it is a sensible way forward. I am not convinced that the changes it seeks to make would, in any way, shape or form, improve on the existing law. Indeed, I would respectfully submit that the provisions would introduce a whole new area of uncertainty into trade union law, and that would be bad not just for the trade unions and employers, but for our economy. In short, it would be bad for Britain. For all those reasons, I propose voting against the Bill, and I urge the whole House to do likewise.

--- Later in debate ---

[Charlie Elphicke (Dover) (Con)]

It is not my intention to speak at great length or to filibuster the Bill, but it does need legislative scrutiny. I take issue with the hon. Member for Hayes and Harlington (John McDonnell) who suggests that any desire to scrutinise, examine or otherwise consider this Bill is somehow reprehensible or wrong. After all, the Opposition spend most of their time doing that to Bills, and when we put pressure on them they roundly criticise us for not allowing proper scrutiny. It is right that this House should scrutinise Bills.

The new intake may be new, but we are not naive. We have been sent here to scrutinise legislation and to clean up politics. For many of us in the new intake, the behaviour of previous Parliaments and the disgraceful abuse of expenses were unacceptable, inappropriate and wrong. The disrespect to this House—including its symbols—by Members of the previous Parliament was inexcusable, inappropriate and wrong. To bring before this House a private Member’s Bill that is obviously controversial and highly partisan in nature is an outrageous and disgraceful thing to do. This day should be for legislation that will pass with the support of both sides of the House. It is wholly wrong and inappropriate to waste the time of this House by bringing before it legislation that will divide it. There are other issues that we could have been discussing today on which the House is united and agreed. I say to the hon. Gentleman that it is inappropriate, inexcusable and wholly wrong to do this to this House and the other Members who have legislation to be considered today. We could have been passing useful law today, but I do not think that that will happen. We could have been talking about matters that unite us, but for which there is too little parliamentary time.

I especially condemn the hon. Gentleman because not only does his Bill lack support on this side of the House, but—as we have just heard from the hon. Member for Llanelli (Nia Griffith)—it lacks support on his side of the House.

[Mr Nuttall]

That point is important. When I made my brief comments, I was not aware of Opposition Front Benchers’ stance, but I am not surprised because the Labour Government introduced the provisions in 1999 and therefore it is to be expected that Labour Front Benchers will stand by what they said. The provisions have stood the test of time and no one has sought to change them before now.

[Charlie Elphicke]

I agree with my hon. Friend, who makes a powerful point. The Bill is highly technical and seeks to change things that seem technical, but it has the support of no major party in the House. The Bill is also highly controversial in that it seeks to extend the right to strike, but in reality would extend only uncertainty and the getting of money by our legal friends—I used to be one, I regret to confess. We should not proceed in that way.

As a member of the new intake, I was driven to be here today at the request of several constituents, who wrote to me. One letter stated:

“John McDonnell’s Lawful Industrial Action (Minor Errors) Bill will have its Second Reading in the House of Commons on 22 October and I urge you to attend Parliament to ensure this takes place.

The Bill has been introduced in response to a raft of recent cases where courts have ruled”

as we have heard, and I will revert to that shortly. The letter goes on:

“These cases have meant British law now imposes fetters on unions in relation to ballots which are unprecedented in Europe”.

That piqued my interest. I thought that I had to respond to my constituent because, unlike Members of Parliament in former times, I believe in writing back to my constituents and taking an interest in that in which they wish me to take an interest. I am nothing if not a servant of my constituents.

I therefore read the Bill and the explanatory notes. Paragraph 6 of the explanatory notes, which, I believe, the hon. Member for Hayes and Harlington wrote, states:

“A number of recent judicial decisions have revealed a degree of uncertainty on the scope and application of section 232B—for example, in the meaning of ‘accidental’ in subsection (1)(b). The cases have also highlighted, among other things, that the section does not apply to errors, however minor, in the giving of notice under section 226A or 234A. It remains unclear where the burden of proof lies in the event of a dispute as to whether an error involves loss of the protection of section 219.”

Yet, as we have heard in the debate, the Bill creates a new uncertainty. Those provisions of trade union law have been in place for the past two decades and more, and they are well understood by the courts and the legal system.

Will introducing the new test of “substantial compliance” help the unions? I do not think so. It will help create uncertainty and it will help lawyers, but it will not help the trade unions. I say that as someone who is broadly a supporter of trade unions and their legitimate right to use their economic power to withdraw their labour if that is the collective democratic will. As a supporter in principle of the right to strike, I think that the Bill is wrong because it creates a new uncertainty where certainty had been garnered over time. As a supporter of trade unions, I think that the measure’s aim is wrongful; as a supporter of employers, I do not believe that their time should be taken up in instructing lawyers and coping with new uncertainty. They need some certainly for their business planning.

Is the Bill necessary? Paragraph 7 of the explanatory notes states:

“In May 2010 an interim injunction was granted by McCombe J in British Airways plc v. UNITE the Union on the basis of alleged failure to comply with the provisions of section 231 of the 1992 Act regarding information about the result of a ballot. The Court of Appeal… reversed that decision.”

It threw out the injunction. The explanatory notes continue:

“Smith LJ stated that ‘it appears to me very likely that the judge at trial would hold that there had been substantial compliance’”.

The explanatory notes cite a case as the mischief that necessitated the Bill, when it actually proves the opposite. Paragraph 7 goes on to say that in paragraph 149 of the judgment, Lord Justice Smith

“observed: ‘I consider that the policy of this part of the Act is not to create a series of traps or hurdles for the Union to negotiate. It is to ensure fair dealing between employer and Union and to ensure a fair, open and democratic ballot’… However, the other two members of the Court reached their decision on different grounds.”

The hon. Gentleman’s case is that a mysterious uncertainty remains over the effect of insubstantial errors on the operation of the ballot and notice provisions, but I think there is no such uncertainty. It seems to me that the Court of Appeal ruled fairly and squarely in favour of discharging that injunction. The mischief cited as a reason for introducing the Bill seems, when one gives it close examination and reads it with some degree of care, not to be a mischief at all.

[Charlie Elphicke]

My hon. Friend is absolutely right. Court of Appeal decisions, by our system of precedent, bind future decisions of that court and all lower courts. As I am sure he knows, only the Supreme Court can change and overrule a precedent. That is highly unlikely, and highly unusual in cases such as BA v. Unite.

[Mr Nuttall]

One real danger of the Bill is that the current set of established legal precedents would effectively become worthless. We would be back to square one, because new section 232B of the Trade Union and Labour Relations (Consolidation) Act 1992 has not been considered by the courts.

[Charlie Elphicke]

I completely agree with my hon. Friend, who makes a strong, powerful point. The situation is that the hon. Member for Hayes and Harlington alleges an uncertainty that seems not to exist.

The Bill would seem on the one hand to reverse the burden of proof, and on the other to introduce a concept of substantial compliance that creates even more uncertainty. As a former lawyer, I know that the concept “substantial” is relatively well understood: it normally means 80:20. However, substantial compliance in the context of the Bill creates a further question. What is 80:20 in terms of compliance?

[Mr Nuttall]

Is my hon. Friend suggesting that 20% of members need not be consulted? Would that be regarded as substantial compliance under the Bill? That would be outrageous.

[Charlie Elphicke]

My hon. Friend makes a good point. What does substantial compliance mean? I am not sure. The hon. Member for Hayes and Harlington really should have drafted the Bill properly to include a proper definition of substantial compliance. That might at least have earned Labour party support, if not necessarily Conservative support. If before laying the Bill without any discussion he had worked with the Government, it might have been less controversial. He could have worked with his own party to produce something that could achieve the kind of consensus that there should be for private Members’ Bills.

--- Later in debate ---

[Philip Davies (Shipley) (Con)]

It is a pleasure to participate in the debate. I congratulate the hon. Member for Hayes and Harlington (John McDonnell) on getting off the blocks more quickly than anybody else and having his private Member’s Bill debated on the first available day. I am probably slightly more generous than my hon. Friend the Member for Dover (Charlie Elphicke) in that, even though I do not agree with the Bill, I think that the hon. Gentleman is perfectly entitled to introduce legislation that he feels is important to him and his constituents. However, I share my hon. Friend’s frustration that that means that more worthwhile private Members’ Bills could be sidelined today. That is extremely unfortunate.

I would say in passing, Madam Deputy Speaker, that although it is good to see you in the Chair, it was a great pleasure to see Mr Speaker in the Chair for the start of the debate. Recently, it had got to the stage when the Speaker was rarely seen on a Friday for private Members’ Bills, but his appearance today shows how important such Bills are to Parliament. I hope that you, Madam Deputy Speaker, will pass on my thanks to him for giving Fridays the respect they deserve by attending the start of the debate.

I was disappointed that the hon. Member for Hayes and Harlington and his hon. Friend on the Front Bench, the hon. Member for Llanelli (Nia Griffith), decided to take a novel approach to debates in the House by not wanting to take interventions. The House of Commons is not a lecture theatre but a debating chamber, and often during debates and through interventions we can tease out the strengths and weaknesses of legislation. I hope, therefore, that that trend will not be repeated in future weeks and debates on private Members’ Bills. I found the opportunity to intervene, and the reply given was actually quite informative, so I say to the hon. Lady that taking interventions in a debate is to be commended, because it allows us to tease out the issues.

[Mr Nuttall]

Had interventions been taken, we might have got on a lot more quickly this morning, because we could have got answers to some of the questions I raised. Instead, we were left hanging in the air. Had the hon. Member for Hayes and Harlington (John McDonnell) taken one or two interventions, we would not be in this position, because he would have been able to deal with those matters straight away.

[Philip Davies]

I tend to agree with my hon. Friend. As it happens, I am a fan of the hon. Member for Hayes and Harlington, who is a great parliamentarian. However, it was rather uncharacteristic of him to make it abundantly clear at the start of his speech that he did not want to take any interventions. My hon. Friend pointed out that he had not provided a definition of substantial compliance in the Bill, which made it all the more unfortunate that the hon. Gentleman started by saying that he did not want to take any interventions, and woe betide anyone who tried to intervene—that was the gist of his starting point—because otherwise we might have been able to ask him what he thought substantial compliance meant. That might have shed some light on the matter.

--- Later in debate ---

[Philip Davies]

I am grateful to my hon. Friend for his intervention. Anyone who knows him will know that he would never intend any discourtesy to anyone, and I had certainly taken that as read, but I am sure that the hon. Member for Hayes and Harlington will be grateful to him for that clarification. My hon. Friend certainly did not need to explain that to me, however; knowing him as I do, I know that he would never be discourteous to anyone on either side of the House.

There are simpler ways for the hon. Member for Hayes and Harlington to pursue his campaign, although I would not necessarily endorse them. Part of the hon. Gentleman’s frustration is not to do with the law as it stands. How could it be? As we have explored, the Court of Appeal agreed with his particular standpoint. He cannot therefore have any quibble with the law as it stands. I think the hon. Gentleman’s real quibble is with judges who grant injunctions and the basis on which they do so.

The hon. Member for Hayes and Harlington certainly needs no advice from me—neither does anybody else for that matter—and I am sure that he will not take it, but I am certainly prepared to give it to him free of charge. My suggestion is that he start a campaign around the whole issue of judicial injunctions. What tends to happen when people seek an injunction from a judge—not just in this case, but in other cases, and we often see it in libel or privacy law—is that everything happens very quickly. That is why people seek an injunction—because something is about to happen very quickly. It might be a strike action within a day or two, or a story being printed in a newspaper that is going to have very damaging effects on somebody’s reputation. That is why an injunction is sought at very short notice.

On what basis should a judge be able to grant an injunction? That is the issue. Let me deal with what happens when people seek injunctions. I feel rather nervous about making these points when I am surrounded by so many esteemed people from the legal profession. As a non-lawyer, however, let me clarify my observation of what happens. Because something is going to happen that could have a devastating effect—on a business, on customers or on somebody’s reputation—judges are, in effect, risk-averse. If something is about to happen—an article to be published, a strike to take place—and there is some uncertainty over the law, a judge cannot go back and change the law to stop it happening. What judges quite understandably do is to take a risk-averse view. They feel that the law might need some clarification and it is not entirely clear whether something is legal or illegal, so they adopt the risk-averse option of granting an injunction on the basis that a court can overturn the injunction later. If an injunction is not granted, something cannot be stopped from happening after it has happened. That is why I think the hon. Gentleman might want to pursue the whole area of injunctions and the level of proof or certainty judges need before they can grant them. I believe that that would help his side of the argument; it would certainly be more helpful than promoting this Bill.

[Mr Nuttall]

Let me explain why my hon. Friend’s point is a good one. When asked to grant an interlocutory injunction, the courts will by definition have to act very quickly, as he says. They do not have the time to consider all the evidence in detail, so if there is a prima facie case to grant an injunction, they will grant it—without looking into the merits of the case. My hon. Friend is quite right about that. This is perhaps the root cause of the Bill and the real concern that it addresses.

[Philip Davies]

I am sure that my hon. Friend is right. He got rather technical during the course of that intervention, at which point it went beyond my capabilities. The bit that I understood, however, I certainly agreed with. Knowing my hon. Friend as I do, I am sure that I would have agreed with the bits that I did not understand. I therefore commend whatever my hon. Friend said to the hon. Member for Hayes and Harlington who, having a greater intellectual capacity than me, will have understood everything that my hon. Friend said.

[Philip Davies]

I am being tempted by people who are more expert in the law than I am to comment on matters that they know far more about than I do. My hon. Friends can take it as read that I agree with them on any matter with regard to the law, because they are in a far better position to argue their case than I would be.

I am still warming to my theme of how the intentions of the hon. Member for Hayes and Harlington can better be advanced. His supporters in the trade union movement also take exception to the definition in legislation of “accidental”. We can all probably accept the definition of making a difference to the result. If a certain number of ballot papers were affected, all of which voted one way, but the result would not have changed, the wording in the current law of,

“on a scale unlikely to affect the result of the ballot”

is perfectly clear. From that starts the frustration.

The issue is the “accidental” point. If the hon. Gentleman attacked that problem, as he sees it, by instilling some definition of “accidental” in the Bill, his supporters might find that a more fruitful way forward. In the case of BA, which he quoted most during his speech, the judge, summing up his ruling to grant an injunction, said:

“I do not consider that there is evidence capable either of establishing that UNITE held a reasonable belief in the entitlement to vote of all its members, or enabling it to rely on an ‘accidental failure’ within section 232B.”

The point that Unite was making was that any failings in its ballot were unintentional, and that that met the definition of “accidental”. The judge said in his conclusion:

“In my judgment, an unintentional failure, as it was categorised by”—

Unite—

“in the circumstances of this case, cannot be regarded as an accidental failure within the meaning of that section, even applying a purposive construction to its provisions.”

Therefore, the problem for Unite was that it did not get over the first hurdle of “accidental”. The problem was not, as the hon. Gentleman said, in relation to the test of

“on a scale unlikely to affect the result of the ballot”—

the judge did not even get to that—but that, as far as the judge was concerned, Unite had not got over the “accidental” hurdle. The hon. Gentleman’s unhappiness with the existing legislation can be only with the definition of “accidental”. If he wishes to move things forward, from his perspective, I suggest that he do so by instilling a definition of “accidental” that meets his requirements.

[Mr Nuttall]

My hon. Friend makes the point, which was touched on earlier, that the way around the problem, with which the judge had to deal when considering the case, relates to the current provision’s use of the word “and”. If the Bill were to introduce the word “or”, one could easily understand the rationale for it.

[Philip Davies]

rose—

--- Later in debate ---

[Philip Davies]

I am sure that my hon. Friend is right. As it happens, I am content with the law as it stands. I shall be interested to hear what the Minister has to say. I do not know what he will say and I do not want to pre-empt it, but I hope he will say that the Government have no intention of changing the current law, because, as the court has ruled, it is perfectly adequate. I am sure that the Government will always work closely with any Member if they feel that an injustice needs to be corrected, but I am not sure that that is the case in this instance.

[Mr Nuttall]

On 21 June 2010, the BBC carried a report headlined “Government shuns call to change strike laws”. The report said the Government had indicated that there were “no plans” for alterations in the law on industrial action. That might help my hon. Friend. It will be interesting to see whether the Minister has changed that position.

[Philip Davies]

That is helpful and I am grateful to my hon. Friend for his intervention. Knowing the Minister as I do, I am sure that his position has not changed in the short time since then, because he is a very solid chap who would not change his mind so loosely and so quickly. Therefore, we need not worry about that, but we will listen with interest to what he says.

It is important to note that the original legislation that the Bill tries to change—the Trade Union and Labour Relations (Consolidation) Act 1992—gave protection to trade unions; it was not anti-trade union. Some of its provisions protect the rights of workers in a union that takes action, if necessary by striking, to defend and support their interests when reasonable notice is given and in contemplation or furtherance of a trade dispute. The Act protects the rights of workers to organise in or leave a union without suffering discrimination or detriment. It also defines trade unions and states that they are subject to legal rights and duties. It provides a framework for unions to engage in collective bargaining for better workplace or business standards with employers, so the thrust of the legislation already on the statute book should be welcomed by Opposition Members.

On the proposals of the hon. Member for Hayes and Harlington, the Institute of Employment Rights states that the purpose and effect of the Bill is to ensure that small accidental failures in ballots will be disregarded. I am not entirely sure that that is entirely the case, because my understanding of the existing legislation is that it does just that—it provides that small accidental failures in ballots will be disregarded. That is the wording of the existing legislation. The hon. Gentleman is trying to change it so that, so long as unions have demonstrated substantial compliance, such failures will be disregarded.

In passing, I wonder about the titles of Bills, because they often seem to contradict completely their supposed purpose. For example, the Equality Bill was about all sorts of things but it certainly was not about equality. The Bill that the previous Government introduced to restrict jury trial should have been called the “We think the public are thick Bill”. We should have some honesty about what Bills are trying to do. This Bill is called the Lawful Industrial Action (Minor Errors) Bill, but it seems that it is not trying to stop minor errors being taken into account, as the law already does that; it is trying to allow unions to be able to make some major errors in the ballot and have those disregarded, too. If the hon. Gentleman ignores all my earlier advice, which I am certain he will do, and brings back the Bill at another date, if he does not manage to get it through on this occasion, I will ask him for the sake of clarity to change the title to the Lawful Industrial Action (Major Errors) Bill because then we might have a better idea of what we are dealing with.

The Institute of Employment Rights also claims that minor errors in the information about the result of the ballot will be disregarded and forensic examination of procedures will end. That will worry people. The institute says that the forensic examination of procedures of unions carrying out their ballots will end and be replaced just with the concept of substantial compliance. I am not sure that the hon. Gentleman is renowned for having a laissez-faire attitude to things, but he certainly has a laissez-faire attitude to the running of ballots if he does not think that forensic examination of the procedures involved in the running of a strike ballot should be taken into account.

As we have heard, the burden of proof in injunctions will shift in that evidence will be required that substantial compliance has not taken place. How on earth can we expect the employer to carry out that burden-of-proof task of saying whether or not a union ballot was substantially compliant? Others have made that point, but it has to be emphasised because, clearly, only the union itself can demonstrate whether the ballot was substantially compliant. How on earth can the employer make that decision when they have had no control over the running of it and do not have the necessary information? In the speech of the hon. Member for Hayes and Harlington? I heard no explanation of how on earth an employer could be expected to do that. I suspect that that is because the hon. Gentleman knows that the employer could not possibly do it, and that therefore this is a tactic to ensure that the employer will never be able to stop any kind of strike action because they will never be in a position to do so. I hope that in his summing up the hon. Gentleman will give some examples of how he thinks employers would be able to demonstrate clearly that a ballot has not been substantially compliant.

Even though the original legislation was passed in 1992 by a Conservative Government—for the purposes that I have outlined—it was amended twice by the previous Labour Government, in 1999 and in 2004, and, as my hon. Friend the Member for Bury North (Mr Nuttall) made clear, the provisions the hon. Gentleman does not like were supported by his party when it was in government. I have not researched this, and I would not want to embarrass anybody in particular, but I certainly hope the hon. Gentleman did not at that time vote for those proposals in a Bill that he must have thought was completely unacceptable. It would be interesting to discover how many of the Members who voted for it in 1999 are today up in arms and complaining that this is an unacceptable piece of legislation, because they seem to be complaining about their own legislation.

The Labour Government amended the legislation twice, therefore: in 1999 and again five years later. They had acquired five years of evidence of the workings of the legislation before they changed it for the second time, yet they did not take the opportunity to introduce the change the hon. Gentleman proposes. I can only presume that they did not do so because they thought the legislation was working perfectly well, and I venture to suggest that the situation is the same now.

The unions also argued in their earlier court cases that the current legislation was contrary to article 11 of the European convention on human rights. I am not a lawyer—and I am certainly not a human rights lawyer as I do not like the Human Rights Act and I would like it to be scrapped—so I do not know whether the unions are right. However, if the hon. Gentleman thinks the existing legislation is incompatible with that convention, his union members can take their case to the European Court of Human Rights. If he is right, they are therefore already protected in law. If he and the unions are absolutely certain that it contravenes the European convention on human rights they do not need to change the law through this Bill as they can be safe in the knowledge that the convention, which we are signed up to and which is enshrined in our legislation through the Human Rights Act, is in place.

It needs to be made clear at the outset that this Bill has some vehement opponents, ranging from think- tanks and the esteemed Mayor of London to the CBI. I believe that it was my hon. Friend the Member for Dover who said we are relying on business to get us out of the financial mess that we are in. We need the private sector to be flourishing, so we should take note of what it says with great interest. All those opponents argue that the balance of power between trade unions and employers has shifted too much towards the unions over the past 13 years. That touches on a point made by my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg), who said that perhaps we ought to be looking not at giving further powers to the trade unions and shifting the balance even further towards them, but at whether or not there should be greater regulation of the industrial action that is causing so much damage to our economy. He asked whether we should be considering that, rather than making such action easier.

The points that the hon. Member for Hayes and Harlington made seemed to suggest that his Bill was based on two cases. I could mention other cases, but I do not wish to detain the House unduly by going through all of them at length, as that would be unnecessary. The two cases that his remarks concentrated on were Network Rail v. RMT and British Airways v. Unite. I just want to touch on those cases and the reasons why they are not a good basis on which to introduce this Bill.

[Mr Nuttall]

I just want to clarify things so that we are talking about the right judgment. There are two cases with the same title and the only way of differentiating them is by the name of the judge involved, so is the British Airways case that my hon. Friend is referring to the one dealt with by Mrs Justice Cox, which I believe was the first one, or the second case, which came before Mr Justice McCombe? Will my hon. Friend be discussing both cases or just one?

--- Later in debate ---

[Philip Davies]

I very much agree with my hon. Friend. I know that he is a great advocate for rail commuters in his constituency—he has even had Westminster Hall debates on the problems that his commuters face. He is a great champion for his constituents and I agree with him. This is a very interesting point. If the hon. Member for Hayes and Harlington wants to make it easier to have strike action, perhaps, as a quid pro quo, he might consider what my hon. Friend the Member for Enfield North (Nick de Bois) says and introduce into his Bill a provision that some statutory consultation must take place with all affected parties before any strike action, so that people can understand the full consequences of that action. It might well be that when a union decides that it wants to go out on strike because of a grievance with a particular employer, it does not take into consideration the wider impact it will have on innocent third parties who are no part of the dispute at all. My hon. Friend makes a very good point—perhaps that is an anomaly that should be addressed in legislation. I hope that the Minister was listening carefully to his intervention, because he is in a far better position to do something about that than I am. It is certainly worth considering.

[Mr Nuttall]

I am not sure that my hon. Friend has picked up on exactly the right point. I thought that my hon. Friend the Member for Enfield North (Nick de Bois) was making the point that if the novel concept of substantial compliance is introduced with regard to the balloting procedure for industrial action by trade unions, surely it would be right, fair and sensible to introduce a similar provision in the legislation relating to redundancies. Has my hon. Friend the Member for Shipley (Philip Davies) had any representations on what the unions would think if that were the case—if an employer needed only to comply substantially with the law when making people redundant?

[Philip Davies]

My hon. Friend makes a good point. He turns the argument on its head: he says that rather than giving unions more arduous responsibilities so that they have to meet the same demands as employers, perhaps employers should be given the liberty to take the more flexible approach that the Labour party clearly wants to give to trade unions. Whichever way we consider it, it is perhaps unarguable that they should both be subject to the same treatment.

My hon. Friend is right to concentrate on substantial compliance, because it is, in many respects, a nonsensical concept to introduce into law. Virtually anybody could claim, when they flouted the law, that they were substantially compliant with it. If we extended the concept right across the criminal justice system, we would probably find that nobody could ever be found guilty of anything, because they could easily demonstrate that they were substantially compliant with the law—they had broken just one part of it. The hon. Member for Hayes and Harlington should go back to the drawing board and think again about whether he wants to introduce the concept of substantial compliance in law.

Let me come back to the point that I was making about the impact that the strikes would have had if they had gone ahead. Three million passengers and freight users would have been affected, and the strike would have coincided with the first day back at work after the Easter holidays. That would have had a devastating impact. It is true to say that Network Rail had a robust contingency plan in place, but this comes back to the point that my hon. Friend the Member for Bury North (Mr Nuttall) made about the importance of giving notice to employers, so that they have an opportunity to mitigate the worst impacts of strike action.

Even with that robust contingency plan in place, Network Rail could have run only approximately 4,500 trains on the day of the strike action; the normal figure is 24,000. We are talking about 20% of the service running, and 80% not running. Some of the most important lines into the capital would have run at just 11%. That would have had a devastating effect on the economy of the country, and it is right that judges take that into consideration.

Turning to why the injunction was granted by the courts, as my hon. Friend the Member for Bury North said, minor errors are already covered by the existing legislation. I have already outlined the relatively narrow margin of victory in the vote for strike action. Most people would consider some of the errors to be not minor at all; I think that some people would consider them to be rather more major. Network Rail successfully argued that there were serious errors made in the balloting of members. For example, 11 signal boxes that no longer exist were balloted, including East Usk in Newport, Gwent. The RMT balloted it to gather the votes of six registered voters, although it had burnt down in a previous year. That is not a minor error—it is quite a serious error.

[Mr Nuttall]

I have to come back to this point: bearing in mind that the Bill also seeks to transfer the burden of proof to the employer, if the union does not know where its own members are employed, it is a bit rich to turn the law around and expect employers to do the job that we are talking about. In the case that my hon. Friend mentions, even the trade union could not get its notices sent to the right place.

--- Later in debate ---

[Mr Davey]

I certainly intend to do that, Mr Deputy Speaker, but I hoped it would help the House if I set out some of the context of the debate. I think that people sometimes have amnesia when it comes to what actually happened in the past.

It is worth reminding Opposition Members that the laws we have today relate not only to the laws passed in the 1980s and 1990s, but to the changes in those laws made by the last Government. My hon. Friends made it very clear that the last Government reviewed and made changes to this very part of our law, and did not adopt changes such as those that the hon. Member for Hayes and Harlington is trying to persuade the House to support today. They did not want to make any significant changes to the law on ballots and notices. Indeed, the last change of any substance that they made was in 2004. That is probably why the hon. Member for Llanelli was unable to support the Bill. She and the hon. Member for Bradford South (Mr Sutcliffe)—when he was doing the job that I am doing now—examined the law extremely closely, and found no case for changing it.

It has hardly been a secret that trade unions wanted to extend the disregard in section 232B, but I presume that when the last Government examined the law, they decided not to listen to those trade union voices. I am pleased to observe the consistency in the position adopted by the hon. Member for Llanelli. Successive Governments have taken the view that the legal framework of our industrial relations law is basically sound, and this coalition Government certainly share that view.

[Mr Nuttall]

I realise that we need to stick to the point, but I think that the historical context is very relevant. The certainty of the law is of great benefit not just to employers but to trade unions. The danger posed by the Bill is that it will reintroduce a great element of uncertainty.

--- Later in debate ---

[Mr Davey]

I agree. I put it in another way, which complements the argument that my hon. Friend is making. I think that progressive trade unions welcome the law as it is. It ensures that their reputation, the way they work and their relationship with members is protected because they can show that they have gone through the right procedures. That improves their reputations with not just their members but the public, so I ask Labour Members who support the proposed change to reflect on the long-term implications for trade unions if we went down that route.

Every union must ensure that it has a good grip of the procedures when it enters disputes and that those procedures are professionally run. I do not think it is unreasonable to ask them to ensure that their information systems and membership records are as accurate as possible, using the vast power of information technology currently at our disposal. I suspect Opposition Members would be as intolerant and unforgiving as I am if organisations in other walks of life failed to keep accurate records or provided mistaken advice or a second-rate service. We should expect high professional standards from trade unions, just as we expect the same high standards from others.

The truth is that the previous Government understood that. From their extensive political contacts with unions, they knew there were problems with how some of them were managed. I suspect that they believed union leaders were a mixed bag in terms of their professional competence. That is why they argued for, and introduced, the union modernisation fund. They wanted to inject public funds into unions to bring them up to scratch. Millions of pounds were spent on projects to update membership databases, adopt new technologies and inject modern managerial methods into the running of trade unions.

[Mr Nuttall]

On the question of new technologies, the Bill would have been better if it had addressed the problems raised by the judges in the Court of Appeal, and if, instead of changing the rules on substantial compliance, it had provided specifically for the internet, e-mail, Twitter and text to be valid means of electronic communication for the purposes of the legislation. That would have provided a specific clarification that Members on both sides of the House might have been able to support.

[Mr Davey]

My hon. Friend makes a good point. The Court of Appeal thought about that carefully in coming to its judgment, but I would not want to go any further and say the law has to be tightened up in that way, because the judge’s statements are already quite helpful. I see the thrust and power of my hon. Friend’s argument, however.

If the UMF had worked as intended, it should have rectified the deficit in this area. I suspect, however, that problems remain and inefficiencies persist. While we all need to make sure that unions can try to reform in that area, I do not think the law should be relaxed to preserve poor methods of working within unions. Rather, it should be designed—as, by and large, it is—in the expectation that trade unions will run themselves efficiently and spend the money they collect well; their total annual income is more than £1 billion.

The current law not as rigid as the Bill’s supporters suggest. At virtually every point, the provisions are designed to take account of the fact that trade unions, just like any other organisation, do not have perfect knowledge and complete information at their disposal. Many provisions in the law are flexible enough to take account of what is “reasonable” or “reasonably practicable” for the unions to achieve.

Let us take the example of the law on ballot notices, which is a major part of the Bill. I know trade unions criticise these provisions a lot. Obviously, notices need to convey information, but according to the law—section 226A of the 1992 Act—that information needs to be

“as accurate as is reasonably practicable in the light of the information in the possession of the union at the time”.

That is not an onerous condition, and it is because of those sorts of conditions in the current law that the unions have won a number of cases in this year alone.

--- Later in debate ---

[Mr Davey]

I am afraid I only did Latin O-level, and I have forgotten a lot of it.

Turning to the notices informing the voters and the employer of the outcome of the ballot, sections 231 and 231A respectively require only that the union take, as

“soon as is reasonably practicable after”

the ballot,

“such steps as are reasonably necessary”

to inform all persons entitled to vote and every relevant employer of the outcome.

The Bill’s supporters also believe that the law loads the dice in favour of the employer. According to their analysis, the law makes it difficult, and even impossible in some cases, for trade unions to defend the interests of their members—but, again, where is the evidence that the strike weapon has lost its potency, if used responsibly? The level of industrial action varies from year to year, but in the past 12 months for which data are available about 620,000 days were lost through industrial action. I would like that figure to fall, but such levels of industrial action in the UK are about the average for the EU overall, when allowance is made for the size of each country’s work force. In 2007, the latest year for which EU data are available, EU countries lost, on average, 34 days through industrial action per 1,000 workers. The UK figure was similar, although a little higher, at 38 days per 1,000 workers. That does not suggest that the UK laws on industrial action are out of step or are more difficult for British trade unions to navigate than laws elsewhere in the European Union.

[Mr Nuttall]

Just as a matter of interest, is the Minister aware of whether any other European Union country has a provision similar to the one proposed in this Bill?

[Mr Davey]

I am not, although I think it is highly unlikely that any EU country does, for the following reason. The way in which industrial relations laws have developed in different countries reflects different traditions, and that is how it should be; I do not think that there is a standard approach in the EU. The British view obviously draws on a very different tradition from elsewhere, but the effect is not dissimilar in terms of the average number of days lost. So the hon. Member for Hayes and Harlington, the promoter of this Bill, has not made his case; he has not provided evidence to show that our trade unions face particular problems.

The hon. Gentleman’s opening remarks contained references to various observations made by advisory bodies to the International Labour Organisation, but the data simply do not support the argument that unions in the UK are uniquely disadvantaged when it comes to organising strike action. The previous Government made it clear that Britain upholds its commitment to the ILO conventions; indeed, there has never been a challenge at the supreme authority of the ILO that we have transgressed our international commitments to those conventions. Some people make rather too much of this by saying that we are somehow breaching ILO standards and other human rights obligations on freedom of association.

It is also worth noting that employers normally choose to settle disputes before industrial action takes place—only a minority of industrial action ballots actually lead to industrial action. According to our estimates, in about 80% of cases where employees have voted for industrial action, no industrial action is subsequently taken. Both sides treat the outcome of the ballot as a stimulus to further negotiation. Once again, such behaviour is difficult to square with the conclusion that employers invariably have the upper hand under our law and could easily obtain an injunction to stop a strike in its tracks or impose their will unilaterally.

The hon. Member for Hayes and Harlington and others have discussed recent court cases. He said that they have made matters much worse for trade unions, but we have heard that argument rebutted.

--- Later in debate ---

[Mr Nuttall]

On court cases, does the Minister agree that it would have been sensible for the hon. Member for Hayes and Harlington to wait before introducing this Bill until the case that the RMT is taking to the European Court of Human Rights had been dealt with, as that may shed some light on the matters that we have been considering this morning?

[Mr Davey]

My interpretation of the fact that there are some cases before the European Court of Human Rights is that we do not need the legislation at all. Those court cases are dealing with the issues of uncertainty that remain and the case law is helping to develop the situation.

--- Later in debate ---

[Mr Davey]

I have enjoyed the sedentary interventions of the hon. Member for Bolsover (Mr Skinner) over the years, but this Liberal Democrat has his own, independent mind, and he opposes the Bill.

[Mr Nuttall]

I am sure that hon. Members who have been present throughout the debate know that my hon. Friend the Member for Shipley (Philip Davies) had many more comments to make and has not had the opportunity to do so. The idea that opposition is being artificially engineered is far from the truth, because my hon. Friend had much more to say, and could well still have been speaking at this moment.

[Mr Davey]

I am grateful for all the interventions, but I want to present my arguments because there are genuine concerns about the Bill that the coalition partners share, and it is important to put them to the House.

We have serious difficulties with the proposal to reverse the burden of proof. To date, in any proceedings, once the employer has established that there has been a breach of the safeguards, the burden shifts to the union wishing to avail itself of the statutory defence to establish whether section 232B applies. That is consistent with the rules on the burden of proof: the burden generally lies on the party making the proposition. However, the Bill contravenes that general rule of evidence. In addition, it ignores another general rule that parties are not required to establish a negative. Under the Bill, the employer has to establish that the breach does not qualify for the disregard under section 232B. On a practical level, it is unrealistic and unfair to imply a level of knowledge on the part of the employer, which enables the employer to show not only that the law has been broken, but that the lack of compliance is substantial and meets certain thresholds.

--- Later in debate ---

[Jacob Rees-Mogg (North East Somerset) (Con)]

Listening to the debate on the Bill since just after Prayers this morning has been of great interest, as have the points that have arisen and been made by hon. Members on either side. However, I ought to start with a point made by the hon. Member for Hayes and Harlington (John McDonnell), who said that we were in some kind of new politics. I think we should be very suspicious of that phrase, because if we look at the annals of history, as I know the House likes to do from time to time, we will see that every generation looks back at the past, and says, “That was a golden age, an age when they knew what to do and did things right and properly. And now look at the times we live in! O tempora! O mores!” as the great Cicero so famously said. He lived in the time of Julius Caesar, so people were making that complaint back in the 50s BC.

It seems to me to be wrong to expect the procedures of this House to be adjusted for some absurd new politics. As we all know from the book of Ecclesiastes, there is nothing new under the sun. That is actually right. Politics is never new or old; it is always the same. People want to get what they want and use strategems and sometimes even tricks to get it. We may be shocked at the tricks, but that is the reality.

The hon. Member for Hayes and Harlington said on a point of order that the will of the House was not being shown, but I think it was. The vast majority of the House decided that, actually, the Bill was not of sufficient importance to warrant their attendance.

[Mr Nuttall]

My hon. Friend makes an interesting point. The Bill’s title was designed to encourage exactly that response from Members. To be fair to them, I can quite appreciate that they would look at that title and think, “There’s not much here, move along,” but in fact, when we study the detail of the Bill, we find that it is a very substantial piece of legislation indeed.

[Jacob Rees-Mogg]

My hon. Friend is absolutely right. I was about to say that his speech reminded me of an age of politics when things worked. His was the form of speech that this House was used to when it was at its greatest, when it was the House from which legislation came that ruled an empire and a quarter of the world.