Lord Stoneham of Droxford
Main Page: Lord Stoneham of Droxford (Liberal Democrat - Life peer)Trade Union Bill
Lord Stoneham of Droxford Excerpts(8 years, 3 months ago)
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Baroness Neville-Rolfe
I thank my noble friend. That is certainly something we can look at.
I was asked for an example. In a trade dispute about pay, it would be reasonable to expect the union to state which year’s pay offer is in dispute, and which employees are covered by the offer. This may be done in some cases but in others it may not. I am concerned about a trade union simply stating the trade dispute, as proposed in Amendments 23 and 24. This would not ensure that the voting paper was sufficiently clear. Members need to know exactly what they are voting for—if there is a strike they lose money.
Lord Stoneham of Droxford (LD)
Is it not a reality that any ballot paper would have accompanying documents setting out the case for the vote. Surely that is where the detail should be, not on the ballot paper.
Baroness Neville-Rolfe
We do need clarity. I have listened to what has been said in relation to the reasonably detailed indication. We have heard from the noble Lords, Lord Collins, Lord Oates and Lord Pannick, about what that might mean in practice. I would like to reflect on whether we have got that right. Probably what everybody wants is a balance, so that there is sufficient detail and members can make an informed decision without unnecessary burdens being put on unions by asking them to include a long and detailed account of the trade dispute.
I turn to Amendment 25. Terms such as “action short of a strike” are too wide. The type of industrial action proposed will depend on the circumstances of each dispute and the industry concerned. It is important that members know which type they are voting on because of the different impacts on people’s lives. I reassure noble Lords that we have considered that there might be a degree of uncertainty when a union is drawing up its plans about what action it might subsequently take. But it must surely have in mind a plan for such action. All we are asking is that that plan is made available to members.
I am concerned that Amendment 26 would mean that there was no requirement to provide any information on the voting paper about the timing of industrial action, which is a key point. We want to avoid the situation where a member might have made a different decision had he or she realised when the strike would take place. For example, Unite conducted a ballot where British Airways staff voted to strike, but it is not clear that they would have supported the strike action had they known they would have been called out for 12 days over Christmas. We want to avoid that sort of thing.
Baroness Donaghy (Lab)
My Lords, one of the difficulties about moving an amendment on employment relations in a Bill which some of us consider is not about employment relations is finding a context where employer and employee have a mutual relationship which works most of the time but occasionally breaks down—and the extent to which the state intends to help or hinder on those occasions.
A senior civil servant, who shall be nameless, was once asked, “Why is there always an anti-trade union Bill when the Conservative Party wins an election?”. The civil servant replied: “There are two reasons. First, it will delight the local Conservative associations and, secondly, it does not cost anything”—unlike building a motorway or lowering taxes. My Amendment 33 does not cost anything either. Its purpose is to highlight the importance of the relationship between the employer and the trade union and its members, and to recognise the benefits of mutuality in the timing of industrial action. Its objective is to give some flexibility in what can be a very fraught atmosphere.
The existing requirement of seven days’ notice of industrial action once a ballot mandate is achieved is not, in itself, a problem. It is extremely rare for employment relations to be so bad that the lines of communication between management and trade union are completely severed, and notice of intention to hold the ballot will already have been given. During the ballot period, the union will campaign for a successful outcome, and management will inform employees why industrial action is unnecessary. The seven days’ notice only kicks in when the ballot is successful from the trade union angle; it is not relevant if the ballot fails. The employer and union will then know where they stand. If the intention is to hold, say, a one-day demonstrative strike, it is in the interests of the employer to be allowed to agree the timing of the strike with the union—not because it will agree with the strike, but because it recognises the reality of the situation and wants to lance the boil as soon as possible. I am not arguing that two weeks’ notice, in isolation, is a bad thing, but in the context of the total package of this Bill, it is patronising. It is also damaging to take certain judgments away from management and unions in this situation.
The impact assessment talks about “contingency arrangements” and then goes on about,
“more cost effective contingency arrangements”.
I would be interested to know what these are and what the difference is between them. For instance, is it hiring agency staff to cover, which, of course, is more expensive? I do not believe any respectable agency will get involved with this anyway. Will it be hiring people at 4 am from the car park near B&Q on the Old Kent Road—similar car parks are available—which is what the construction industry does? That would certainly be more cost effective as a contingency plan.
The impact assessment refers to both parties seeking,
“to reach a mutually acceptable”,
that word mutual,
“conclusion to the dispute without resorting to a ballot for industrial action”.
That is language I understand and anyone involved in employment relations understands. However, everything in this section of the Bill reveals a mindset that is just the opposite of good employment relations. This mindset wants to maximise bureaucracy for trade unions and make any strike open to legal challenge. It puts so much on the ballot paper that the exit strategy becomes impossible, takes away any flexibility to manage a difficult situation and implicitly encourages strike breaking. The TUC has said that the proposal for 14 days’ notice,
“is designed to reduce the momentum in union campaigns”.
My amendment would allow management and unions some control over events. It recognises that mutuality is important even in times of strife and keeps the channels of communication open. I hope the Minister feels able to support it.
Lord Stoneham of Droxford
My Lords, I want to make a couple of points on this group. Why it is necessary to change the notice? What is the significance? On the face of it you might say, “What is the difference between one or two weeks?”. In the context of our suspicion as to where the Government are coming from on this, I think there needs to be suitable due diligence to look at what really is necessary. The Committee ought to be reminded that it will not be one week. To give notice that you are going to have a ballot, to have a ballot and then to have another week or two after it to give notice for industrial action gives the employer quite a lot of notice already of what could happen.
I accept that the Government are changing the need for action within four weeks of the ballot, so if this was a quid pro quo for that requirement—I do not see the Government arguing that—that might be more understandable. With all the detail that is going to go on the ballot paper, if the date of the industrial action is specified on the ballot paper is that going to act as notice? Is that going to be adequate? Have the Government thought of that?
The amendment tabled by the noble Baroness, Lady Donaghy, recognises reality, and where there is agreement between an employer and the trade union it makes sense to recognise that and exclude it from this provision. We question the essential nature of this section of the Bill but we also understand that whether it is one or two weeks will not make a huge difference in the context of the notice that the employer already has of industrial action.
Lord Callanan (Con)
My Lords, I listened carefully to the two speeches supporting this amendment. There has been a lot of talk about management on the one side and unions on the other and the context of balloting and industrial action but neither of them mentioned the people actually affected by the action—the commuters who want to go to work or the parents who want to take their children to school so they can work. Surely they have the right to at least two weeks’ notice to try to make alternative childcare arrangements, adjust their own employment arrangements or make alternative transport arrangements so as to go about their normal, lawful proceedings at the time. To give them two weeks’ notice is reasonable. Obviously, unions and management are important, but I ask noble Lords to bear in mind that other people are affected by action as well.
Baroness Neville-Rolfe
My Lords, I thank the noble Baroness, Lady Donaghy, for her amendments and for the contribution she made to industrial relations as chair of ACAS. I always listen very carefully to what she says because she knows so much about this important area. We also recognise the important part that negotiations play in reaching a resolution in disputes between unions and employers. One wants to avoid these where one can. I am grateful to the noble Lord, Lord Collins, for reminding me of the good partnership we had between unions and management when I was at Tesco.
Serving notice of an intention to take industrial action is the last stage in the process before a union may actually take such action. This is when continuing dialogue between the parties becomes even more important. This is why we are moving from seven to 14 days, thereby providing a longer period during which trade union and employer can discuss and strive to reach agreement on how best to resolve the dispute without recourse to industrial action. There is, of course, nothing to prevent a union and an employer continuing to negotiate after the notice has been served. Indeed, this happens already. Having a longer statutory notice period should not affect this.
We fully appreciate that a negotiated settlement is best for all concerned. It is better for the employer, the union and its members and—crucially—for the public. Those whose lives can be so affected should be confident that the law provides every opportunity to avoid such disruption.
The noble Lord, Lord Stoneham, asked about ballot paper dates. My understanding is that we will not require unions, when balloting, to provide a specific date. It is an indication of the time period; it does not have to be a specific date.
Lord Stoneham of Droxford
I thank the Minister for giving way. The point I was making was that, if unions put the date on the ballot paper, will that provide a defence that they have given notice?
Baroness Neville-Rolfe
We will come back to that. In the mean time, I will deal with a different point. I have a serious concern about removing the notice and instead relying on the indicated period from the voting paper, as suggested in Amendment 34. An indication is a much vaguer concept. People must have notice of the days when industrial action will take place, or they cannot make the contingency plans that we have been discussing. These can, of course, help to reduce costs on both sides.
The noble Lord, Lord Callanan, most eloquently made the point that strikes can have a wider effect and cause a huge amount of disruption—not only for businesses but for the public. The public need an appropriate amount of time to make contingency arrangements. My concern is that the noble Baroness’s amendment does not address this. Nevertheless, the noble Baroness has made some good and interesting points, on which I would like to reflect.
Finally, to return to the question asked by the noble Lord, Lord Stoneham, on whether a specific date on the voting paper would constitute notice, our answer is no.
“(1) In order to facilitate a picket under section 220, a trade union may choose to take the actions specified in subsections (2) to (8).
(1A) Failure to take actions specified in subsections (2) to (8) does not make any picket conducted under section 220 unlawful.”
Lord Stoneham of Droxford
My Lords, I emphasise the point made by the noble Lord, Lord Deben, that strikes are not happy situations. They are very much the last resort, they are obviously unpopular with customers and they are often a sign of failure. In these situations, you can get examples of relations breaking down and intimidation. That is part of what is a pressured relationship and part of tough negotiations. Intimidation itself is unacceptable, but there are various strains of it that you have to accept in tough negotiations and in a pressurised situation. There will be that sort of experience.
I have experience of picketing from both sides of industry. In my youth, I helped organise pickets in the railway industry. As I got older and became a manager in a very difficult industry—the print industry—I had to deal with pickets at my gate, once with a two-week dispute with a print union and then again with a 12-week dispute with journalists. Both occasions were harrowing and very sad experiences that caused damage to relationships which took a long time to overcome, although I am glad to say we did overcome it.
I have a number of points to make. Orderly picketing requires the commitment and co-operation of unions. It is often not understood that unions play a very important role not only in managing relationships in industry but in containing conflict when it breaks out. Orderly picketing is very important. We are not these days, I am glad to say, talking about the sorts of pickets that we had at Wapping, at Eddie Shah’s Messenger Group or at the Saltley coke works during the miners’ strike. We now have a very clear definition of what peaceful picketing is, backed up by a code of practice, because it is very difficult to define and order relationships when they have broken down. That is what we have had for nearly 25 years, and we have to ask ourselves whether what is being proposed is better than what we have after the progress we have made. That is open to question: in fact I think that the road we are going down will be very damaging.
Baroness Neville-Rolfe
I am grateful to the noble Lord, Lord Stoneham, for his amendment and for bringing up his experience as a manager involved in a dispute.
The Government recognise that peaceful picketing is legitimate and lawful. We are not changing that. Equally, we believe that people have the right to go into work or about their daily lives without fear or risk of being intimidated. This is what we committed to in our manifesto. Picketing in Britain is governed by a framework of civil and criminal law, and is further guided by the provisions, as some have said, set out in the code of practice on picketing. I am pleased to say that most picketing is peaceful and, as the noble Lord, Lord Dykes, reminded the Committee, I said at Second Reading that most unions observe the provisions set out in the code. I say “most” as, regrettably, this is not so in every case.
A number of noble Lords have mentioned the Carr review, including my noble friend Lord De Mauley, and have gone through some of the submissions that were made to that review, which I will not repeat. The review was set up because of the intimidating tactics at Grangemouth, which I think shocked us all in 2013.
Furthermore, in response to a government consultation on this issue in July, nearly half of the 177 respondents stated that they had observed intimidating behaviour, either during picketing or more generally as a result of strike action. This included following staff from the picketing line, strikers bringing dogs to a picket line outside a school and alcohol being consumed on the picket line, leading to heightened incidences of intimidation. One union stated that more than half of its members had experienced intimidation of its non-striking union members.
Even more concerning was the increasing prevalence of intimidation online. Cameras are being used to take images of people crossing picket lines that are then posted online to name and shame them. These photographs are often accompanied by derogatory comments, images and innuendo. Another union, which similarly consulted its members, concluded that the current legal protections are not effective, particularly where low-level intimidation was involved. The CBI has also stated that its members have witnessed trade union activity that falls foul of current guidelines.
The Government are clear that this type of behaviour must be tackled, but it must be done in an effective and proportionate way. Therefore, while our recent consultation also sought views on other proposals, including a new criminal offence of unlawful picketing, we listened. The Government will not be taking these forward. Instead, we have committed to the fair and proportionate provisions of Clause 9. We will also update the code of practice, making clear what is expected in relation to social media, which on occasion has been subject to misunderstanding.
The provisions of Clause 9 are not new and unions will be familiar with them. They reflect the key aspects of the code on picketing, which has been around since 1992. Where they have been followed by most unions, these provisions have not raised concerns or prevented unions picketing. They are targeted at the activities of the minority of unions that do not follow the code. The CBI is equally of the view that while the code has encouraged positive behaviour, its current voluntary status does not ensure that all trade union members follow its guidelines. As we have heard, it has said that it would like to go further and that we should transpose the entire code into a statute. However, we are being proportionate and enacting only the relevant parts that will tackle the intimidation of non-striking workers. There has been a lot of interest in this area and I hope the Committee will bear with me as I go through the amendments briefly.
As the noble Lord, Lord Stoneham, said, we have discussed on many occasions whether we should have “may” or “must”. Neither of us has been entirely consistent. These reforms are preventive measures that should stop unacceptable and intimidating behaviour. They are directed at those unions that currently do not observe the guidance set out in the code. Making compliance with these requirements voluntary would completely undermine their effectiveness. It would also result in confusion with the guidance of the code of practice on picketing that should complement Clause 9.
The noble Lord, Lord Stoneham, asked me three questions, which I will seek to answer. He asked whether I accepted that the co-operation of unions is critical for peaceful picketing. I agree that it is. However, we want to ensure that it is easy for all those attending a picket line to identify who the responsible union official is and that is why we are asking for a picket supervisor to be clearly identifiable.
Baroness Neville-Rolfe
It is in the code, of course, but it is not in the legislation and it is not legally enforceable in the same way. As I have sought to explain, we have put the key provisions in the Bill so that they are observed. These are provisions that the vast majority of unions, as we have heard this evening, feel are entirely reasonable.
The second question related to concern that further legal action would mean that unions would distance themselves from picketing—I think I understood that correctly. The provisions in Clause 9 are perfectly reasonable and proportionate. The appointment of the picket organiser is already in the code and is well known to unions. I see no reason why unions should not comply with those provisions.
Baroness Neville-Rolfe
That is a good question, but my understanding is that provisions relating to familiarity are not new. They have been in the code of practice on picketing since 1992. Familiarity with the code is not an onerous requirement; it is a necessity for the person who is going about their business.
I turn to interaction with the police. It is important that the police know who the picket supervisor is, how to contact him or her and where the picket is taking place. The supervisor does not have to be on the picket line all the time, provided they can return at short notice. It provides an extra safeguard where the police will be able to contact the supervisor should an issue arise on the picket line that does not require police intervention but would benefit from the picket supervisor’s advice.
The advance notice of such details, in particular the location of the picketing, should help the police to plan their resources in the event that something happens on the picket line which requires their attention. The provision to inform the police reflects the language of the code, which has not given cause for concern. The police are, of course, bound by the Data Protection Act and any complaints about the mishandling of personal data can be brought before the independent Police Complaints Commissioner and/or the Information Commissioner. I am not aware of any complaints of this nature related to picketing.
I move on to Amendments 48 and 49 and the letter of approval. As the noble Lord, Lord Collins, said, this has been the cause of significant misunderstanding and concern. We have listened and made amendments. There is now no requirement for any of the picket supervisor’s personal details to be in the letter. Following consultation, the Government tabled an amendment so that the letter seeks only to approve the picketing activity. We further fine-tuned Clause 9 to clarify that only the employer to which the trade dispute relates and at whose workplace picketing occurs will be entitled to see this letter.
I fear that removing this requirement for a letter would result in confusion on the picket line about whether the union has endorsed the picketing and appointed a picket supervisor. I am not sure whether that was the intention, but the substituted wording in Amendment 49 removes the words,
“as soon as reasonably practicable”,
and would make the provision to see the letter more onerous.
On Amendments 51 and 52, the appointed picket supervisor will be the main point of contact during picketing and will act as a source of knowledge so that picketing remains peaceful. That is in everyone’s interest.
Finally, I come to the matter brought forward in the other place by the honourable member for Haltemprice and Howden. The media portrayal of this issue of armbands has been frankly mischievous. The key part is that the picket supervisor must be identifiable. The reference to an armband already sits in the code and is, of course, an indicative example. There are other ways of being identifiable, for example, wearing a badge or having blue hair. However, it is clear that there are concerns. I will therefore reflect further on this matter before Report.
Clause 9 seeks to tackle the intimidation of non-striking workers in a fair and proportionate way. It will result in picketing that is peaceful and consistent in the way it is conducted. I therefore ask the noble Lord to withdraw the amendment.
Lord Stoneham of Droxford
I thank the Minister for her reply to these amendments. I welcome the support my amendments had from the noble Lords, Lord Monks and Lord Collins, and the noble Baroness, Lady Donaghy. I shall pick up one point the Minister made. She said that by making the code statutory we are going to get consistency of approach to picketing because there will be a statutory obligation. Frankly, if she believes that, I will believe anything because you do not get enforcement or consistency just by making something statutory.
I shall pick up one point made by the noble Lords, Lord De Mauley and Lord Callanan, in relation to the Carr report. I read the Carr report, and I was amazed that there were not more instances of bad behaviour because this is a very difficult area to control and discipline. Unions play a very important part in exerting discipline and control in these situations. I shall take up one example because a lot of the examples they gave were examples of criminal behaviour that could have been prosecuted. Let us take the example of a person who is under the influence of alcohol on a picket line. Do we want the police to go in and pull that guy out, in quite an inflamed situation? I am sure they would not do that as their first option. They would want a responsible union representative who is the supervisor of the picket line—which is provided for in the code—to go in and deal with that person and quietly persuade him to leave the picket line. If he is unable to do that and the person does not leave, there is a difficulty either way.
The problem will be if that individual, having tried to do that, is then prosecuted because he has not fulfilled the statutory duty that is now laid down for picketing. Who in the union movement is going to take on the job of picket line supervisor when they could risk being taken through the courts? I have seen it happen to an individual from the shop floor. It destroys their life because they are not used to it, and it is irresponsible. Anybody who has seen that will know that nobody in their right mind in the union movement would easily take on that responsibility. The point that we are trying to make is that the code, by being voluntary, encourages people like that to help enforce consistency and order in the picket line, and if you make it statutory you will complicate the situation and deter that sort of behaviour. That is the problem. However, I withdraw my amendment.
Lord Collins of Highbury
I am grateful for that intervention. The noble Lord, Lord King, is right. I could not predict the order that we would take the amendments in, and I am happy to leave these on the table, as it were, so that we can look at the practical implications and move speedily on to the next groups, where we will be able to address the principles in relation to the model rules. I beg to move.
Lord Stoneham of Droxford
Are we not going to have a preliminary debate on this? I want to make the same point as was made by the noble Lord, Lord King. We have already had a long debate on this section and have decided that the matter will be referred to a Select Committee, which is now taking evidence. Therefore, I do not intend to make a long speech on these amendments, for the very reasons that the noble Lord, Lord King, said.
I do not want to go into all the arguments as to why the Select Committee is important, but, in parenthesis, and so that I do not have to say much more in this series of debates, I want to say three things. First, the Select Committee received evidence from the Certification Officer when it was in public session. As I understand it, he said two things. One is that he was never consulted, which is surprising if we are trying to look at responsible legislation, because he is going to have to implement it. The second thing he said is that he has had to deal with very few complaints on opting-in and opting-out issues.
Secondly, I want to make a general point about the amendments in this group, and particularly the reference to “electronic means”. If we want a way to encourage people not to opt in, it ought to be in writing because, these days, nobody responds to correspondence in an efficient and effective way, but they do respond to emails. To have the Minister, a pioneer of the digital age, advocating that all the replies should be in writing is, frankly, taking us back to the horse and cart. That is very important.
Thirdly, government Ministers do not have to employ an army of special advisers to advise them on the best way of doing the Labour Party down. I am sure that there are behavioural scientists who advise the Government on how people respond to government correspondence. They know exactly what happens when you take a certain action. If you stick to the writing, rather than going electronic, you are just encouraging the destruction of the funding of the Labour Party.
Nobody has more interest than this side of the House in getting political funding reform, I can tell you. But as we said in the debate, we want to make sure that this is a fair package which is agreed. If you do not, it will be open warfare in the future and your individual donations will be under attack—
Lord Stoneham of Droxford
Yes, I know. I am getting there. I am quite entitled to make my points, as the amendment has been moved. I do not intend to say much during the debate, but those points needed to be made.