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

John McDonnell Excerpts

Wednesday 11th September 2013 Commons Chamber

[Mr McKenzie]

I absolutely agree with my hon. Friend.

Recent revelations about blacklisting and everything that is happening in that respect are a worry to many trade union members, who would see these membership lists as being available to be passed around with ease, with all the consequences that that entails. I think that the entire Committee is united in condemning blacklisting, so why are we being asked to assist the ease by which information can be gathered to continue the practice of blacklisting? If hon. Members had seen the trawls that the people who compile these lists go through, they would realise that we are making it very easy to put a list together, pass it on and make money out of branding other people as “trade union activists” and so on. I ask the Government to reconsider this part of the Bill and to adopt our amendments.

[John McDonnell (Hayes and Harlington) (Lab)]

I think we misinterpreted the hon. Member for Huntingdon (Mr Djanogly), because what he said was extremely supportive. He went to what my hon. Friend the Member for Edinburgh South (Ian Murray) described as the crux of the Bill, asking why it is here. The hon. Gentleman was asking his own Front Benchers, “What the hell are we doing?” As my hon. Friend the Member for Inverclyde (Mr McKenzie) and others have asked, what mischief does this part of the Bill seek to address? I really tried to find out what the Government’s thinking is, so I looked at what they said in the consultation paper, which was published in July. The first reason they put forward for this move was as follows:

“As membership organisations, it is important that trade union decisions reflect the will of all their members.”

If that is the case, does it mean that we are now going to legislate in respect of all membership organisations? Sir Edward, you are a member of the Roman Catholic Church and if we are going to do that, we might well introduce legislation to see whether the Catholic Church is following the laity’s views.

Why does this provision apply to trade unions alone? Next, the Government identify trade unions for this special legislation because:

“Trade union activity has the potential to affect the daily lives of members”.

With the greatest respect, so too does the activity of the Roman Catholic Church, the CBI and the Institute of Directors. So why are we focusing on this particular membership organisation? As has been said, the reason is that this legislation is really about trying to impede the operations of the trade unions in this country. Government Members might argue that this measure has minimum cost and minimum imposition of roles and responsibilities on trade unions. The impact study makes an assessment that there will be only 6p of additional cost, although that is still 6p. However, it also says, straightforwardly, that the risks are that this will displace core trade union work. It will do that; trade unions will have to devote their time and energies to this and it will therefore displace their core trade union work of representing their members. So it is about impeding the real role of trade unions.

[Julie Elliott]

Does my hon. Friend agree that this part of the Bill is unnecessary legislation and that it is just an attack on trade union members going about their daily business and being active trade unionists? It is an attack on ordinary working people standing up for their rights in the workplace.

[John McDonnell]

That is exactly what it is. I am speaking on the clause standing part, as well as to the amendment, Sir Edward, because we have to understand what this clause means. I cannot, for the life of me, interpret it other than in the way my hon. Friend has just done. It is an attack specifically on the role of trade unionists and their rights to fulfil their responsibilities.

We have seen the operation of challenges to membership lists in respect of industrial relations and, in particular, of industrial action being taken and determined by members. The history is that the employers have used the existing legislation and interpreted it so that any minor discrepancy about a membership list is used in a rush to court to seek an injunction to prevent industrial action from taking place. Some examples have been given, but I have been involved in a number of activities associated with trade unions where even though there has been a 99% overwhelming decision in favour of industrial action, one or two members out of thousands have been missed off the ballot and so an injunction has been awarded. Therefore, the industrial action, along with the will of the members, has been prevented from being implemented. We tried to overcome that through legislation in this House—I tried to put such legislation through on three occasions, but it got talked out every time—but we have just overcome it in the courts. We have received a decision in the courts that enables minor infringements not to be taken into account and the decision of the overall will of the members to be acceded to.

However, the Bill opens up a whole new vista of potential legal challenges. As colleagues have said, it relates not only to industrial action, industrial activity, ballots and so on; it could relate to the whole operation of the union. Employers could trawl over membership lists, go off to the certification officer and then we could get to court, where the challenge will be about how the union operates overall. So lawyers will be able to tie up trade unions in legal actions for years to come, preventing them from undertaking what the impact study calls their “core” trade union work of representing members.

I ask Government Members: what is the motivation for this measure? Some of that has leaked out. They have listened to what has happened in recent months—the anger there is among working people about the cuts to their wages, the zero-hour contracts and the undermining of employment rights. People are beginning to react. They do not usually react at the depths of a recession, doing so when they are coming out of one and when the living standards of some are rising. So we are talking about a recovery for the rich but a recession for the rest. That is when people get angry and when industrial action takes place—that is when strikes happen. It is also when trade unions need to be representing their members. So I think this measure is part and parcel of the Government preparing for the potential for industrial activity over this coming period. It is another mechanism by which they will do everything they possibly can to undermine the rights of trade unions and their ability to operate effectively in representing their members. It is so short term, because all it will do is anger people even more and as these impediments build up, although they are relatively minor at first, people will become more angry. Then, we will have wildcat action—action that is uncontrolled—because people are so furious at how they are being treated by their employers in collusion with the Government.

Let me make one final point, because I want to understand. If the argument is that the clause is about ensuring that membership organisations are open, transparent and accurately reflect their members’ views, and if it is about organisations that have an impact on the general life of our society, why does it not refer to the CBI, the Institute of Directors and all the other trade associations? They are membership organisations and they have as much of an effect on the daily lives of our population as trade unions, yet they remain completely unregulated. That portrays to me the in-built bias of this Government against trade unionism and working people. That is why we must vote against clause stand part.

The amendment is moderate, and simply says that if the certification officer identifies a problem we should implement the provision—I have similar amendments on the implementation of the Bill, which we probably will not reach. That is all my hon. Friend the Member for Edinburgh South is saying: if there is a grievance or a problem let us by all means have some action, but not unless a problem is identified. That is a relatively moderate, pragmatic way forward. If the Government do not accept the amendment, that will completely endorse the view that this is bias motivated by prejudice against trade unions and trade unionism.

[Ian Murray]

My hon. Friend is making another compelling speech. He mentions organisations such as the Church, the IOD and the CBI; is he as astonished as I am that while this draconian measure is going through to restrict trade unionism even more in this country the Conservative party will not even tell us how many members it has?

[John McDonnell]

I fear when Governments start seeking to regulate civil society generally. That is what the clause does: it is a step along the path of regulation of wider civil society organisations. What else? The Countryside Alliance? We might be up for that, just to see where the money comes from, but there are a range of organisations whose rights, privileges and privacy we want to be respected for reasons of basic civil liberties. Why are trade unions being singled out in this manner? The Bill is being targeted and comes at a time when the Government are predicting that they will be faced with trade unionists who are very angry about not being able to share in what is supposed to be an economic recovery. It is about the exercise of trade union rights.

My hon. Friend the Member for North Ayrshire and Arran (Katy Clark) mentioned the legality of the Government’s legislation. Let me be clear that our Governments have been condemned by the International Labour Organisation and other international organisations for two decades now because of their trade union legislation. It is not just about the right to strike; it is about certain basic and fundamental trade union rights. The clause, yet again, imposes further duties that I believe to be completely contrary to ILO conventions. Yet again, this country will be isolated in the world and condemned for its attack on trade union rights, which are incorporated in all those international statutes and conventions as a basic human right.

In summary, that is why I oppose clause stand part and support the moderate, pragmatic amendment. If we reach that stage in our consideration of the Bill, I will discuss the amendments I have proposed, which basically say that if the Government want the legislation—which we do not support—to go forward, they should at least have some form of trigger, such as a complaint or concern that has been raised and assessed. If there has been a complaint and there needs to be further action, fair enough. That is not the case at the moment and I think that this is just biased prejudice against trade unions and trade unionism overall.

[John Cryer]

First, let me say what a compelling speech my hon. Friend the Member for Hayes and Harlington (John McDonnell) just made. He made some strong points—this is about the evisceration of the industrial and political opposition over the next few months because the Government can see some serious problems on the horizon emanating from the policies they are pursuing. They want to neutralise any resistance to those policies and their consequences through the Bill and other measures.

I have a series of questions on this clause that I would like the Minister to deal with. My first question has been asked before, but it is specific. What specific complaints about union record keeping have been made and by whom over the last, say, three years? Secondly, as an addendum to that, what evidence is there that unions are not keeping accurate records? As we have heard before, under the 1992 legislation there is already a duty on trade unions to keep their records up to date. What has changed since then? What enormous problems are associated with trade union record keeping that have led the Government to their current position and to change things in such a radical way?

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[John Cryer]

I completely agree with my hon. Friend. There is also the situation involving payroll companies. If such a company offers to take over an employer’s payroll responsibilities, the duties to pay pensions, national insurance and sick pay are divested to that payroll company, meaning that that semi-detached element in the workplace is responsible for maintaining many records, which makes keeping everything up to date even more complicated and difficult. Another aspect is the casualisation of the workplace, because there are some sectors of the economy in which full-time permanent employment is almost being abolished. Again, that situation will make it more difficult to comply with the Bill’s strictures.

[John McDonnell]

My hon. Friend makes a crucial point about the difficulty of communicating with trade union members. I have been a branch secretary, so I know that it is difficult enough to communicate with just a branch. The key aspect of the Government’s motivation in previous legislation has been to address balloting procedures, which I understand to a certain extent, because there is a need to ensure that there is an accurate record of membership when taking a ballot. However, what is sinister about the Bill’s proposals, with reference to the Government’s assessment, is that they are about ensuring that the general public and employers are

“confident that voting papers and other communications are reaching union members”.

The Bill therefore covers a wider range of activities than just balloting, so there could be challenges from employers and others about just whether a trade union had adequately communicated with its members, by post or other means, about any matter.

[John Cryer]

My hon. Friend makes a good point. Perhaps the Minister will tell us whether any other section of civil society is as heavily regulated as trade unions. Unions will be subject to even more regulation because every piece of communication with members will be covered by statute, which represents an extraordinary intervention into people’s lives.

Will the Minister tell us how the 1992 Act relates to the Bill, and especially to clause 36, because that Act makes provision for keeping accurate and up-to-date records? Will she tell us what has specifically changed since the implementation of that consolidation Act that has brought about an enormous problem that now must be dealt with?

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[Mr Doran]

I hope that I took it in good part, Sir Edward.

The decision on the legislation that was to proceed was taken under the process I have mentioned, and everything agreed between the CBI and the TUC was implemented. At its heart was the need to take the heat out of industrial action. We looked at a whole range of areas. One key area was the problem of recognition disputes, when unions had built up a membership in a company and wanted recognition. Many such disputes ended up in the courts and in difficult strikes. We wanted to take the heat out of all areas of conflict. All of that was implemented in the Employment Relations Act 1999. The evidence was a dramatic reduction in the number of strikes—my hon. Friend the Member for Edinburgh South mentioned the number, but I cannot remember—and that has been maintained. I do not think that there is any question about that.

During the Conservative years, and the previous Labour years, to be honest, the level of strikes was far too high. That legislation and that process brought that to an end, and at the time both sides were happy. Even before that legislation was implemented to set in place a process for dealing with recognition disputes, and the effort was to take them out of the courts and minimise conflict, over 1,000 new recognition agreements were signed by both sides.

One of the major problems with this Government is that they have a one-sided approach that demonises trade unions and in every way possible places barriers in the way of the trade union movement. There is no realisation of what happens on the ground. Most trade unions are there not to strike or disrupt the employer, but to protect their members. As part of the process I mentioned, we did a lot of balloting and held focus groups to find out why members signed up to unions. The important thing for most of them was the insurance policy that they got—the fact that the union would support them if there was an argument with their employer, and in particular would pay for the lawyers in an unfair dismissal case, for example. That is what members bought into.

One of my concerns about the Government’s approach is that the harder it becomes for trade unions to operate properly, as trade unions should be allowed to operate in a democratic system, the more members will become tired of the system and have no proper recourse for their grievances. I do not often agree with my hon. Friend the Member for Hayes and Harlington (John McDonnell) on these issues—

[John McDonnell]

Yes, you do.

[Mr Doran]

I try not to.

[John McDonnell]

Increasingly you do.

[Mr Doran]

My point is that if people see a weakened trade union movement, they will take matters into their own hands. That is a dangerous situation.

Many companies around this country work well with their trade unions and recognise them properly. Most are large; a significant number of FTSE companies, for example, have good relations with trade unions. I remember a number of occasions when unions have been used to lobby Members of Parliament. Once my right hon. Friend the Member for Holborn and St Pancras (Frank Dobson) and I made a difficult trip to Sellafield; we were expected to stand on top of a reactor, although we were both too cowardly to do that. We were also gently asked to meet the trade union officials. At that time we were developing an anti-nuclear policy.

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[Jo Swinson]

I hope that I can give the hon. Gentleman some reassurance. It is not a question of every single membership entry having to be audited; it is about the process the union has in place for doing so. The certificate needs to be provided to give assurance on that. He also said—a few Members mentioned this—that the proposed powers somehow exist already, but they are actually very narrowly drawn. The certification officer’s power to investigate a complaint by an individual member applies only to that individual’s membership record; it does not extend to other members in the organisation. Indeed, it does not give those who might not be a member of a trade union the ability to complain. Of course, a member might not know that there is a problem with their records. Indeed, if they are not receiving information from the union, they might not know when there is a ballot for a committee, for example.

I will turn now to the specific amendments and respond to some of the points that have been raised. Amendment 103 would remove the annual duty to provide a membership audit certificate. Instead, the certificate would need to be submitted only if a complaint were received by the certification officer and he thought that it was necessary. Amendment 121 would go along with amendment 103 by removing the duty to appoint an assurer. I do not think that the amendments are useful, because they stop the key policy objective. I agree that there is clearly a difference of opinion between both sides of the Committee on the reasonableness of the measure, but that is why the Government do not support the amendments. The current arrangements just do not give that assurance, because they rely on members proactively checking the register. Even if they do check the register, they cannot see all of it and they do not know whether other names and addresses are up to date; neither do they know who should and should not be on the register.

Various Members have mentioned the difficulties of tracking membership. Indeed, the Engineering Employers Federation has commented that trade unions

“do not have a unified way of tracking membership and it remains difficult for them to do so”.

The Chartered Institute of Personnel and Development said that

“Unions have stated difficulties at times maintaining the addresses of members”.

Amendment 104 would allow for delaying the submission of a membership audit certificate if the union were appealing. I absolutely understand that unions do not want an assurer to send mistakenly or maliciously a qualified certificate to the certification officer without their knowing about it, but I believe that the amendment is unnecessary and hope to give some reassurance on why. The current drafting states that the assurer will send the copy of the membership audit certificate to the certification officer only after it is provided to the union, which means that the union will already have seen the certificate and had that opportunity to talk with the assurer. Of course, it is worth noting that it is the union that will appoint the assurer, and it has every ability within the agreement it makes in appointing an assurer to say that it would like the opportunity to see the certificate and comment before it is sent off.

[John McDonnell]

I think that most of us are still mystified about the objectives of the clause, so I will put one scenario to the Minister to test its purpose. The clause will enable someone who is not a trade union member—a member of the Conservative party, for example—to contest the membership list. This is about communications between the union and its members, so if the union in the run up to the next general election, say, sends out a letter to its members urging them to vote for the Labour party, the Conservative party member, who is not a member of a trade union, could contest the accuracy of the membership list and, in that way, undermine the trade union’s ability to communicate with its members. That is possible under this legislation, and it betrays its purpose.

[Jo Swinson]

The certificate that will have been issued, and which will be available for any member of the public to look at, will show that the union has a proper process in place for maintaining its membership list. That will give that assurance to anybody who looks at it. It of course will not give the details of the names and addresses of the union members, as some Members seem to have suggested; it will simply give that assurance.

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I agree with all of our amendments, but I urge the Government to look again at amendments 112 and 117 in particular. I am really concerned that the clause has not been thought through and that it has not been written in a practical way that relates to the real world. If legislation is going to work, it has to do those things, and this Bill simply does not pass that test.

[John McDonnell]

I want to follow on from the excellent exposé by my hon. Friend the Member for Sunderland Central (Julie Elliott) of the rationale for the concerns of the Opposition and others. To be frank, I thought that we had won this argument. As my hon. Friend the Member for Edinburgh South (Ian Murray) has said, we had a debate on blacklisting several months ago, in which there was cross-party understanding of the vulnerability that people feel in the work force. As my hon. Friend the Member for Sunderland Central has said, that vulnerability relates not only to blacklisting, but to victimisation.

I raised the issue in 1997 and in 2003. We got some legislation that was not effective and then I convened the first meeting of the Blacklist Support Group, which brought together in 2008 all those workers with blacklisting cases that they wanted to pursue. One of the breakthroughs for us was the raids undertaken by the Information Commissioner, under the Data Protection Act, that exposed the scale of blacklisting, with nearly 4,000 people on at least one list. People are anxious for us to ensure that any future legislation does not set up a system that could make them vulnerable again.

It could be argued that some of our amendments are a belt-and-braces approach, but this is about restoring confidence. The tragedy in the past—I do not mean to be hypercritical of any organisation by saying this—was that it was not just employers exchanging blacklist information. We now know that it was also coming from the police and security services and, actually, some renegade trade unionists, who passed information to employers who then went on to compile a blacklist. That is why, if we are to establish a new system that gives the certification officer a wide range of responsibilities and that appoints—in the words of my hon. Friend the Member for Wansbeck (Ian Lavery)—the bizarrely named assurer and inspectors, we need to ensure that there is a belt-and-braces approach so that they are properly tasked with abiding by the duty of confidentiality. That is why our amendments are so critical.

Amendment 107 states that it is important that the assurers

“have a duty of confidentiality to the trade union”.

It is critical that the trade union has confidence that those officers have such a duty. It is also critical, as amendment 108 sets out, that when those individuals are appointed, their qualifications are known and they are qualified to do the job. I hope that my hon. Friend the Member for Wansbeck does get the job and the wage from Len McCluskey. I am sure that he is completely qualified to do the job. There needs to be some assurance that the people who are appointed are qualified to do the job. In addition, there must be a process by which assurers can be dismissed if they breach confidentiality. That is also dealt with in the Opposition amendments, which would assure people that their concerns about the use of this information for blacklisting and victimisation are taken seriously in the Bill.

I share the concerns about line 28 on page 41, which states that the duty of confidentiality involves taking “all reasonable steps”. That is not acceptable because it is not powerful enough. Amendment 118 would replace those words with “all necessary steps”. We must ensure that any action that is taken goes beyond reasonableness; it must be necessary and effective.

Further down page 41, the circumstances are set out in which a member’s name and address are permitted to be provided. The list includes the member’s consent, but that seems to be overridden by a range of other situations in which the certification officer may provide names and addresses.

[Andrew Gwynne]

I commend my hon. Friend for the work on blacklisting that he has done in Parliament. Is he as concerned as I am about proposed new section 24ZG(3)(d) to the Labour Relations (Consolidation) Act 1992, which states:

“where it is required for the purposes of the discharge of any of the functions of the assurer”?

That seems to be very wide-ranging.

[John McDonnell]

I have no idea what that means. It has such a range of interpretation that it gives the assurer the ability to provide information to virtually anyone for any purpose. It will undermine the confidence of workers who have experienced blacklisting or victimisation and workers who are currently at risk if the Bill is passed in this form.

One of the reasons why there may be a disclosure of information is

“where it is required for the purposes of the investigation of crime or criminal proceedings.”

In the real world of industrial relations, many Opposition Members have seen a crime being alleged because of the process of picketing. Because the list includes the investigation of an alleged crime, the certification officer will be able to hand over the names and addresses of pickets who are accused of action that could be construed to be illegal. That will undermine people’s ability to exercise their democratic rights as trade unionists by undertaking picketing or other forms of industrial action.

I am anxious about the whole clause. It flies in the face of the assurances that have been given in the House that blacklisting and victimisation will be addressed. People have been blacklisted or victimised simply because they are trade unionists or health and safety representatives. On the blacklist that we discovered, names had been misinterpreted and the wrong people had been identified. Some people had been blacklisted simply because they had undertaken political activities unrelated to trade union activities.

The Opposition amendments simply try to gain the assurance that a duty of confidentiality will be placed on the officers who will implement the new regime. I do not find that to be excessive. It will not introduce burdens on trade unions, the certification officer or the assurer. It will simply clarify their legal duties. One of their legal duties must be to protect the information that they are inspecting or, to use the new verb, “assuring” as a result of this legislation.

I urge the Government to accept the amendments. I hope they do, but even if they cannot, they can at least take the spirit of what Opposition Members have said and return with their own amendments to ensure that there is a duty of confidentiality on the officers concerned; that the qualifications can be properly examined when the assurer is appointed; that assurers can be dismissed if there is a breakdown of confidentiality; and that there is absolute security for the information the assurer guards and controls on behalf of the trade union.

[Jo Swinson]

I welcome the debate on clause 37 and the amendments and I shall respond to some of the remarks hon. Members have made. Clause 37 gives credibility to the maintenance of trade union membership registers to members, employers and the wider public.

As hon. Members know, unions are already required to report on their financial affairs. They need to appoint an auditor, which gives the accounts authority. When a large union submits its membership on its certificate, the Bill provides the same kind of independent assurance that is provided in financial affairs. For the larger unions, that assurance needs to be independent if it is to be credible, which is why trade unions of more than 10,000 members must appoint a qualified independent person to provide the membership audit certificate, which will state whether, in the assurer’s opinion, the union’s systems are satisfactory in relation to compliance with the duties to maintain an accurate register—[Interruption.] If the hon. Member for Sheffield (Angela Smith) wants to intervene, I am happy for her to do so—[Interruption.] I apologise if I did not get the hon. Lady’s exact constituency name quite right. I should have referred to her as the Member for Barnsley and Penistone or whatever. She had a slightly different constituency in the previous Parliament.

The clause provides an order-making power for the Secretary of State to define who may act as an assurer. Somebody cannot act as an assurer if the union has grounds to believe they would not act competently, or that their independence might be called into question. For example, union officers or employers may not act as an assurer. In practice, the assurer will need to be somebody who can understand how records are stored, collected and updated, so that they can provide the audit certificate. They might want to know how the union collects new member data and how members are reminded to keep their details up to date—the hon. Member for Sunderland Central (Julie Elliott) described how a union with which she had been involved did that regularly. The assurer might also want to know how unions update the register once changes are notified.

Unions will need to set out in their rules the process for appointing and removing an assurer. We have provided flexibility for the union, but certain provisions will apply regardless. An assurer may be removed by resolution, or be automatically re-appointed unless one of various specified conditions are met. However, it will always be up to the union to have the final say—it can appoint or remove an assurer by resolution.