Trade Union Bill

Lord Oates Excerpts

Wednesday 10th February 2016 Lords Chamber

[Lord Lea of Crondall (Lab)]

My Lords, perhaps I may add one point to the excellent summary given by my noble friend Lord Collins. I would like to make an analogy with the other big thing that is happening in our lives at the moment—the EU referendum. You have to think about what you want to get out of a negotiation and consider whether it is conducive to getting an acceptable outcome if you spell out every possible thing that you might want. It seems to me that there is a risk in the clause that the Government want to include because the unions would be almost obliged to put everything and the kitchen sink in the list of demands. This could be counterproductive and make it much more difficult for unions and employers to resolve disputes. Why? Because they might find it difficult to convince members that they should accept a settlement that does not deal with all the issues listed in the ballot paper. In some disputes, it will be difficult for the union to predict how employers will respond and how they will wish to negotiate the settlement.

It would be wise, therefore, for the Minister, in her response, perhaps to acknowledge some degree of validity in the idea that it is not always a good thing to put too much information in the question of dispute.

[Lord Oates (LD)]

My Lords, I rise to speak specifically on the measures proposed in Clause 4 and the related amendments. Clause 4(1)(2B) states:

“The voting paper must include a reasonably detailed indication of the matter or matters in issue in the trade dispute to which the proposed industrial action relates”.

One might be tempted to ask what on earth that means. Evidence given to the Bill Committee in another place from the Chartered Institute of Personnel and Development and others was critical of these measures on the grounds that they will be counterproductive and likely to cause worse industrial relations. Lawyers for both the trade union side and employers were worried about the litigation that would ensue.

What this wording means, as the noble Lord, Lord Lea of Crondall, set out, is that unions will seek to draw the nature of the dispute as widely as possible on the ballot paper to protect themselves from later legal challenge. By putting “the kitchen sink” on the ballot paper, they will, in the first place, probably confuse the membership more, which is the opposite of what this clause purports to—

[The Lord Speaker]

My Lords, I hesitate to intervene, but could the noble Lord clarify which amendment he is speaking to?

[Lord Oates]

I am speaking to Amendment 23, which was moved to Clause 4.

The most likely thing is that the clause will have the opposite effect to what is proposed by the Government as their motivation—although, I must say, some of us rather doubt their motivation at this stage. It would be much harder, as has been pointed out, for trade unions to settle disputes once they have put all these issues on the ballot paper because their members may, understandably, object to having voted in favour of action and the dispute being settled before all the issues on that ballot paper are achieved.

The Minister will know that BIS’s Code of Practice: Industrial Action Ballots and Notice to Employers states:

“The relevant required question …. should be simply expressed”.

It goes on to say that nothing which appears on the voting paper should be presented in such a way as to encourage a voter to answer one way rather than another. So I have some questions for the Minister. How does she see the requirement to be “reasonably detailed” fitting in with the requirement that any question is “simply expressed”? Does she not think it likely that a reasonably detailed explanation is more likely to be open to interpretation as encouraging a voter to vote one way or another? Given the Government’s concern that people taking part in a ballot should not be misled as to what they are voting for, does she perhaps see opportunities to extend this principle? Does she think it would be better if the general election ballot had provided a reasonable description of what the Conservative Party had in store for voters? Does she think that voters in the general election could have been told that the first actions of the Conservative Government, on winning an overall majority, would be to take thousands of pounds off millions of hard-pressed working people? That certainly came as a surprise to millions of those voters after the election. Of course she does not. I hear someone referring to the manifesto. The Minister will know that there is already provision for Members to be given information about the nature of a ballot. Again, the BIS code of practice states that unions should give information to their members, including the background to the ballot, the issues to which the dispute relates, and the nature and timing of industrial action that the union proposes to organise. Does the Minister not think that the trade unionists are capable of reading this information and deciding how to vote?

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[Baroness Neville-Rolfe]

I think that the noble Lord makes the argument for the Bill: trying to bring in a greater degree of clarity. I have given an example, which I think is a good one. Perhaps I might proceed.

The approach proposed in Amendment 27, which puzzled the noble Lord, Lord Pannick, requires agreement with the employer and could result in too much time and effort being spent on trying to agree the wording on the voting paper, instead of trying to resolve the dispute. I think that this is common ground. Trade unions will generally want to maximise the possibility of achieving the proposed thresholds and to have clarity and certainty about who is entitled to vote, which is the subject of Amendments 29 and 30. I reassure noble Lords that the law already protects trade unions against challenge over insignificant breaches of the balloting rules.

For example, many of the provisions in the Trade Union and Labour Relations (Consolidation) Act 1992 on balloting are subject to a “reasonableness” requirement. A union cannot be held to account for trifling errors when it conducts a ballot. Sections 226A and 234A require that the lists and figures supplied in the ballot and strike notices must be,

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

Section 227 confers entitlement to vote,

“to all the members … who it is reasonable at the time of the ballot for the union to believe will be induced”,

to strike.

In addition, Section 232B provides that a union still complies with the requirements on balloting, even if it has made some error in the process, if,

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

There is also the case of RMT v Serco, which established the margin of error on which trade unions can rely, thereby adding clarity and certainty around the statutory reasonableness requirement. All of this means that the obligations are not intended to be unduly onerous for unions.

Amendments 29 and 30 in the name of the noble Lord, Lord Stoneham, go further by allowing the union to import a “reasonable belief” into what is a trade dispute, so removing the current objective test to determine whether a matter constitutes a trade dispute. This would allow the issue to be opened up to uncertainty, according to what the union believed.

Amendment 31 addresses concerns about unions complying with the requirements to ballot those who are entitled to vote. I draw noble Lords’ attention to the fact that, in future, unions will have more certainty that those who are entitled to vote receive a postal ballot paper. This is because the previous Government introduced a requirement for unions to submit membership audit certificates. This enables unions to demonstrate that they are complying with their duty to keep membership records accurate and up-to-date.

Amendment 32 is duplicative. Section 231 of the 1992 Act already states:

“As soon as is reasonably practicable after the holding of the ballot, the trade union shall take such steps as are reasonably necessary to ensure that all persons entitled to vote”,

are told the result of the ballot. Members and employers will therefore know the number of votes cast and the numbers of individuals answering yes and no. It would not be fair to leave them to work out whether the thresholds were met, especially as the union will have calculated the result in order to know whether it has secured a mandate.

On Clause 6, I agree that it is not sensible under this amendment to go into too much detail on the Certification Officer, since we shall come to that on day 4. But this clause is important because timely provision of good quality information is a key component of ensuring effective regulation and it gives confidence to those affected by disputes. The need to provide such confidence is why annual returns—

[Lord Oates]

With regard to Clause 6, can the Minister tell us more about the regulatory impact? Under the coalition Government we introduced a rule of one regulation in, one out, and later we made that one in, two out. Which two regulations will be removed from trade unions as a result of this clause?

[Baroness Neville-Rolfe]

I shall look at what the noble Lord has said. The way one in, two out works is that where a new burden is brought in, equivalent burdens in pounds million are reduced. Obviously we produced an impact assessment for this and we shall be ensuring that when regulations are totted up, double the resulting amount is deregulated elsewhere. Under the system, one Bill is not linked with another but the totals are totted up. The noble Lord makes a good point about the importance of deregulation—and impact assessments are important for the same reason.

I have pretty well finished on this point, but the noble Lord, Lord Collins, asked about the secondary legislation that the Government would be making in relation to these clauses. There is no power to make secondary legislation in respect of Clauses 4 to 8. The provisions are set out in the Bill, which is why it was right to take the trouble to spend a little time setting out what was intended.

We have had a constructive discussion. There is a little further work in terms of scrutiny on this particular section. I am grateful for the points that were made, particularly on the issue of reasonably detailed indication. I should like to reflect further and in the mean time I ask the noble Lord to withdraw the amendment.

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[Lord Deben]

First, I did not accuse anybody of not caring about the passenger or the customer. I merely pointed out that in all the speeches I have heard from the other side nobody mentioned these people, so I cannot believe it is front-of-mind; I cannot believe that it is actually there. The noble Baroness, Lady Donaghy, whom I listened to with great care, and respect considerably, suggested that she had a suspicion about the nature of these proposals. The suspicion was that they were not really about improving industrial relations, but were in some way of a party-political kind. Of course, we can all have our suspicions. I have a suspicion that people who do not mention the customers or the passengers or the rest are not as interested in them as they are in the trades unions themselves—

[Lord Oates]

Would the noble Lord accept on this point that many of us are opposed to most of the measures in this Bill precisely because we think it will be entirely counterproductive to good industrial relations—that it will lead to more action and more problems to the public? It is for exactly that reason that we opposed this unnecessary Bill in the coalition, and we will continue to oppose it here.

[Lord Deben]

I fear I have to say to the noble Lord that I am much older than he is. I remember exactly that argument—exactly that case—demanding that we should not have ballots, that it would extend the time that it would take to get rid of industrial disputes, that it was unnecessary to have them by post, and that it was perfectly possible to do all these things in the old-fashioned way. The very party that presented those arguments would not dream—well, I hope it would not dream, even under the present circumstances—of abolishing those things, yet the arguments all the way through were exactly the same as we have now. That does not mean to say that this Bill is a good Bill, or that this Bill is right. What it does mean is that many reasonable, centrist politicians—and I am one of them—

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[Lord Oates]

I cannot account for the arguments that other people made a long time ago; as the noble Lord rightly states, I was rather younger then than I am now. When noble Lords on these Benches were dealing with these matters and bringing in laws—whatever he says, they were rules that I did not propose and never have—they were bringing them in to address a problem. This is a Bill that is a solution to a problem that is not there. If you look at the days lost to industrial action and the incredibly responsible behaviour of the trade unions during a period of unprecedented austerity, you will see that there is a difference. There was a big problem that they had to tackle, whereas this is a solution in search of a problem.

[Lord Deben]

I hoped that I was addressing this with a certain degree of care. I do not want to enter into the argument as to whether trade unions or employers have behaved in one way or another. I believe that industrial action from time to time is necessary. I have never disagreed with that. But it seems to me important—I think the party opposite agrees—that this should in fact be the last resort: you do not have industrial action unless you really need to have it. I hope that one of the reasons the party thinks that, although it has not referred to it, is that it inconveniences—and more than inconveniences—the public as a whole. It is not unreasonable to think seriously about some of the things that can be done to ensure that people are careful about this. That is on both sides; I do not suggest anything other than that.

It seems reasonable to say that you do not call a ballot unless you really need to have industrial action, and it is unlikely that the circumstances four months later or thereafter will be the same as when the ballot was held. That is the point that the noble Lord who spoke last put forward. I am afraid that that does not support his case; it supports my case. If there have been significant changes in those four months, it does not seem reasonable to rely on a ballot that took place in entirely different circumstances. You should have a ballot close to the point at which the industrial action is taken. I think that four months is rather a long time. A week is a long time in politics and four months is a long time in industrial relations. There are other things in the Bill that I am not very happy about, but this proposal seems perfectly reasonable.

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[Lord Cormack]

My Lords, I do not wish to detain the House for long. In 1970, I was elected to the other place for a mining constituency. I saw the first miners’ strike and I still had a very large colliery—Littleton Colliery—one of the largest in the country, throughout the second miners’ strike.

During that period, I was impressed by two things. One was the close community feeling locally, which meant that I was a welcome visitor at any time to the pits—and later to the one pit I had left. I never had any fierce altercation, even heated argument. I had many discussions, but I was also very conscious that ugly things were happening elsewhere and that there was abuse of people who wanted, in all conscience, to go to work and whose lives were made fairly miserable in the process. So I do not think any moderate, sensible, balanced person could possibly disagree that there should be a code. The question is whether we give it the force of law.

The noble Lord, Lord Monks, made it quite plain that the ugly, indefensible actions to which my noble friend Lord De Mauley referred are illegal anyhow. We have measures that we can take against people who behave in this way. A code does not have the force of law in that sense. The question is whether we incorporate some or all of the code in a piece of legislation, which I think is frankly not necessary. It was in the manifesto and therefore the Government are entitled to bring it before your Lordships’ House, as they have taken it through another place.

We had a reasonable discussion about taking measures to define what people could and could not do. When I suggested the substitution of the word “clear”, my noble friend gave a moderate and helpful reply. Clearly, there are going to be long discussions taking place between now and Report. I think the answer is for there to be a discussion on the whole subject of picketing. In the 21st century, no reasonable person could conceivably argue that there should be no legal protection for people who wished to withdraw their labour. Of course there should. It therefore follows that there must be proper legal provision for those who wish peacefully to persuade their fellow workers who have not accepted the strength and validity of their arguments to do so. It must be done within a wholly peaceful, unaggressive, unintimidatory context. I do not think anybody in your Lordships’ House would disagree. My noble friend the Minister has shown herself open to ideas and suggestions. We need a proper discussion with her to see if we cannot come to a proper compromise that can be in this piece of legislation without overdoing it—without putting boots on it, if I can use that metaphor. I hope that this will follow from this debate.

[Lord Oates]

My Lords, I wish to speak briefly in support of the amendment moved by my noble friend Lord Stoneham and to pick up on some of the points made so far.

First, it should be absolutely clear that the noble Lord, Lord Monks, did not suggest that he was supporting people who engaged in intimidatory and violent action. He certainly did not and that should be on the record.

The noble Lord, Lord Callanan, spoke as if the code of practice for picketing was the only framework within which picketing took place. It is not. As the Government’s impact statement says, there is a detailed framework of civil and criminal law which governs picketing. In addition, there is a statutory code of practice on picketing which may be taken into account in law in any event. My noble friend Lord Stoneham made an important point about taking the code of practice into law—whether unions and members might be less willing to supervise pickets if we moved in that way. As my noble friend said, the unions play an extremely important role in ensuring that trade disputes are conducted in a proper and lawful manner.

Finally, I return to the point made by my noble friend Lord Stoneham, the noble Lord, Lord Monks, and other noble Lords. It is not good enough for legislation just to say why something should not be done. It should say why it should be done—what is the problem? The Government’s impact statement fails to provide that. Noble Lords have made reference to the Carr review. As the noble Lord, Lord Monks, said, that often dealt with issues which were not related to picketing and which would have been dealt with under the civil or criminal law. When an impact statement has to rely on the words:

“However, the media has reported that people not involved in a dispute can feel intimidated”,

one wonders about the nature of the problem the Government are seeking to solve. We all want to ensure that picketing is done peacefully and properly under the law—that is not in question. The question is how to do it most effectively and whether putting the code of practice into law is the effective way to do it. We, on this side, do not feel it is.