Trade Union Bill: Opposition has reduced its severity but the bill is still a pig's ear

Trade Union Bill - 27 April 2016

Consideration of Lords amendments

After Clause 3

Provision for electronic balloting: review and piloting scheme

Kevin Brennan (Cardiff West) (Lab): I want to make it clear right at the outset that we remain opposed to this Bill. Despite some of the changes that it has undergone ​in another place, it remains a dreadful, mean-spirited, partisan, petty piece of legislation. Having got that off my chest, I recognise that Members in another place have made a valiant attempt to make a silk purse out of this particularly malformed sow’s ear, so that after today it may end up being a slightly less ugly sow’s ear than it was, but it will remain a malodorous porcine lug, for all their lordships’ noble efforts.

Many of the changes that peers made are welcome if we consider the crudeness of the Bill in its original form. On the first group of Lords amendments and the Government’s response to them, Lords amendment 2 was passed in the other place by 320 votes to 181, requiring the Government to commission a review of electronic voting in industrial action ballots within six months of Royal Assent. After the review, amendment 2 would require the Government to publish a strategy for rolling out electronic voting.

Government amendment (a) would revise Lords amendment 2 so that Ministers are required only to publish a response to the review, but need not take further action to actually introduce e-balloting. The Government have consistently resisted e-balloting on the grounds that they still had concerns about the safety of electronic voting, despite the fact, as many hon. Members have pointed out, that the Conservative party used electronic ballots for the selection of its London mayoral candidate, although I suppose the Conservatives may now be regretting that, given the poor performance of the candidate they selected using that method. Perhaps that explains the Government’s concern.

It is clear that the Government’s real objection to e-balloting and, indeed, to workplace balloting, which we argued for unsuccessfully in this House and in the other place, has been that they do not want high turnouts because their new threshold barriers could be more easily reached if more people were more easily able to vote.

Not only will all ballots for industrial action require a minimum 50% turnout under the Bill, but those working in the loosely defined “important public services group” will face an additional hurdle of needing a 40% yes vote from all those eligible to vote. That means that these thresholds place higher requirements on those industrial action ballots than on any other democratic process within the UK. For example, the 50% turnout threshold was not reached for the last London Mayoral election or most local government and devolved elections.

The Government have agreed that Ministers should be required to commission an independent review of the use of e-ballots for industrial action within six months of Royal Assent. They have agreed that it will be possible to run pilots as part of that review, as the Minister said, but the Government are proposing that after the review Ministers would need to publish a response, but not necessarily to take any further action. There would be no requirement to publish a strategy for rolling out electronic voting.

Andrew Gwynne: Is there not a slight concern that this is just a delaying tactic by the Government, who do not intend to introduce these measures? Given that in 2016 many people are quite used to banking online, ​registering to vote online and submitting their tax returns online, do not questions about security and anonymity fall by the wayside?

Kevin Brennan: I know the Minister, and I take him at his word when he says that that is not his intention and that this is not a delaying tactic. However, to coin a phrase, he is a here today, gone tomorrow Minister—I say that from experience, as a former Minister—and somebody else may well occupy his place in the future. That person may not have the good intentions the Minister has outlined to the House today, and we must legislate for that possibility, rather than assume that somebody with good will is going to occupy his seat in perpetuity.

The Government propose that they would not have to publish a strategy after the review. Let me be clear: their amendment is not necessary. I accept that they have moved a long way in accepting the review, the pilots, the requirement to lay a report before Parliament, the need to consult experts and to get advice and recommendations, and the need to commission a report within six months of passing the Act. Those changes are significant, and they go part of the way towards achieving what we have argued for right from the start, as well as achieving most of what was agreed in the other place with cross-Bench support.

Jeremy Lefroy (Stafford) (Con): As someone who, along with other colleagues, including my right hon. Friend the Member for Haltemprice and Howden (Mr Davis), considers that electronic balloting is probably the right way to go, may I ask whether the hon. Gentleman welcomes the progress the Minister and the Government have made in that direction? I believe that the Minister, and indeed any future Minister, although I hope this Minister remains in his place for a long time, will ensure that the evidence is looked at and that, provided it shows that electronic balloting is the right way to go, which I very much hope it does, we will go forward with it.

Kevin Brennan: Obviously I cannot comment on how long the Minister will remain in his post—we will see what happens in the forthcoming reshuffle. However, I did recognise the movement the Government have made, although I made it clear that their amendment to their lordships’ amendment is unnecessary and that the whole matter could have been dealt with in a much more straightforward manner. However, we are where we are, having received these amendments from the Lords, and those are all that we can discuss today.

Ultimately, it is inconceivable that any Minister, having received a report on how e-balloting could be introduced safely, would then deny trade union members the opportunity to participate in a ballot using modern electronic communications. The only possible reason for Ministers at that future point to reject an expert report outlining the appropriate way to introduce modern technology into ballots and to offer the opportunity for easier participation in a democratic vote would be a desire to suppress turnout.

Mr David Davis: The hon. Gentleman comes right to the point. He does not have to rely on the good will of this Minister, who I am sure will be in the Cabinet in six months. The reason I asked the Minister to outline ​at the Dispatch Box the Government’s intent on receipt of the report was that, if another Minister were ever tempted not to follow the explicit policy line we have now, the hon. Gentleman and I could hold that Minister to account in this Chamber.

Kevin Brennan: I do not know whether future Prime Minister Gove will appoint the Minister to the Cabinet—we shall have to wait and see—but the right hon. Gentleman is exactly right. That is why the Government’s amendment is unnecessary and dilutes the effect of accepting the rest of this Lords amendment. However, I am seeking to put on record the fact that, should any future Minister take another path, having had a clear recommendation in the report, one could only interpret their intentions as less than honourable.

Nick Boles: On a point of order, Mr Deputy Speaker. Could you advise me whether it is in order for the House to spend quite so much time talking about my career prospects, because I do not feel that that is really helping?

Mr Deputy Speaker (Mr Lindsay Hoyle): I am not sure whether that is good or bad for the House.

Kevin Brennan: I am happy to leave the Minister alone for the rest of the debate, apart from on the issues we are discussing.

If any Minister did take the path I described, there would obviously be considerable anger and opposition from not just the Labour party but other parties and Members of the other place, who worked so hard to craft this amendment on electronic balloting. In practice, I think the momentum for e-balloting will be unstoppable if the report is published and comes to the conclusions we think it will. However, we prefer the Lords amendment, and we will seek to keep it in the Bill this afternoon.

Let me move on to the other part of this group of amendments, which includes Lords amendment 17, on facility time, the Government’s motion to disagree with it, and their proposed additions to clause 13—should the House decide to reinstate it by voting to disagree with the Lords. The Lords passed amendment 17 by 248 votes to 160, removing Ministers’ power to impose a cap on union facilities by deleting clause 13. The Government have tabled a motion to disagree with Lords amendment 17 so that they can restore their ability to impose a cap on facilities. They have proposed a further amendment to amend the reinstated clause in line with assurances they gave in the Lords, providing that no cap could be imposed for the first three years after the new reporting requirements on facilities came into force.

Before Ministers could impose a cap they would need to review the published data on facilities, the cost of facilities for the relevant employer, the nature of the services run by the public authority, any particular factors relevant to the employer, and other related matters. They would also need to consider the type of organisation and any relevant factors—for example, if the organisation was facing a major restructure. If the Minister had concerns about the level of facilities in a particular public authority, under the Government’s proposed provisions he would need to write to the employer expressing those concerns.

Mr Kevan Jones: What is having to review all this information going to cost the taxpayer? The Minister skated over that. Surely if it is to be done thoroughly and effectively it will come at great cost to the taxpayer.

Kevin Brennan: Indeed. Given that the Government’s stated purpose in doing this is to look after the interests of the taxpayer, it is ironic that what my hon. Friend says is exactly the case.

As I said, we are dealing with what we have got back from the Lords. We would not have wished this provision to remain in the Bill at all. We support the Lords amendment to remove it from the Bill completely, and I am setting out to the House the consequences of not doing so.

The original clause 13 included a reserve power for Ministers to introduce regulations imposing an arbitrary cap on the amount of time that union reps in the public sector can spend in the workplace improving health and safety standards, promoting learning and training opportunities, consulting on redundancies or on TUPE transfers, negotiating better pay and conditions, and even representing members in grievances and disciplinary hearings. We agree with the Lords that the clause on facility time should have been removed from the Bill altogether. It is an unnecessary interference in the conduct of good industrial relations. It also goes against the Government’s professed desire to support devolution, as other hon. Members have pointed out, including the hon. Member for Glasgow South West (Chris Stephens) and my hon. Friend and neighbour the Member for Cardiff Central (Jo Stevens). As the Minister will know, it is being resisted by the devolved Administrations.

We acknowledge, however, that significant advances have been made in Government amendment (a). We support the Lords and want this clause removed from the Bill, but if the House decides not to do so, Government amendment (a) will at least make some improvement to a proposal that should never have appeared in the first place.

Lords amendments 3 to 6.

Lords amendments 7 and 8, Government motions to disagree, and Government amendments (k) to (p) in lieu.

Lords amendments 9 to 16 and 18 to 29.

Kevin Brennan: Thank you very much, Madam Deputy Speaker. There is a great physical similarity between me and my hon. Friend, and it was entirely understandable on your part to mistake one for the other.

First, as I should have done when speaking on the previous group of amendments, I declare my membership of Unite the union and my very proud membership of the Musicians Union.

As the Minister said, the Government are accepting most of the amendments in this group. Due to the time constraints, I will not deal with all of them. He highlighted the significant changes, including on check-off, which we very much welcome. He will recall that during our debate on Report the hon. Member for Stafford (Jeremy Lefroy) tabled an amendment on these provisions. I pointed that out that it was extraordinary that a Conservative Government were seeking to make illegal a voluntary arrangement between parties, even where one party is paying for the service, when that arrangement is neither immoral nor illegal. That would have been an extraordinarily illiberal measure. I am glad that in their lordships’ House the Government gave way on this matter and it is no longer in the Bill. That is very welcome.

I welcome what the Minister said on the record about the certification officer. It is extremely important that the Government recognise the concerns that have been expressed about the potential for vexatious complaints by third parties and the tremendous waste of time that that could be for all concerned. I also welcome his comments on a review of how the provision works out in practice. Although, as I have made clear, we do not agree with what the Government are doing in relation to the certification officer, that is a welcome assurance, and I am glad that he has put it on the record here at this stage before the Bill goes back to the Lords.

Perhaps the most controversial and contentious element of the Bill has been the Government’s desire to create an opt-in process for trade union political funds. Lords amendments 7 and 8 relate to that. The original Government proposal meant that existing trade union members who pay into their union’s political fund would have to opt back into the fund, in writing, within three months of the Bill’s passage, and do so again after five years.​
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Let us imagine if every organisation in the country was required to get a recommitment to every standing order payable to it within three months and in writing. It would obviously result in only one thing: massive problems for that organisation, whether it was a bank, a voluntary group, any membership organisation or a subscription to a magazine. It was always clear to us that the proposal was utterly unworkable, and designed mainly to deprive unilaterally the governing party’s main political opponent—the Labour party—of an important source of funding. It seemed to be a pretty naked attempt to undermine effective opposition from the Labour party in this place and beyond.

That is why the House of Lords set up a special Select Committee to look at the matter, as the Minister said, under the able chairmanship of Lord Burns. We, too, are grateful for his efforts and those of his colleagues on the Committee and other Members of the House of Lords. We thank them—not only Labour peers but those from other parties and Cross Benchers—for approaching the issue in such an imaginative and collaborative way. I recognise, as did the House of Lords in its report, that the Government made a manifesto commitment to introduce opt-in. However, they made other manifesto commitments about big business and we have not yet seen much action on those, but we will leave that for the moment.

The Conservative party manifesto stated that it would introduce opt-in, and it was elected with an overall majority in the House of Commons, albeit on less than 40% of the vote. The Government have therefore been able to argue that the House of Lords should not remove opt-in from the Bill under the normal conventions that the other place follows. The Lords amendments are extremely skilfully drafted. The House of Lords has taken the view that opt-in should apply only to new members of a trade union, that there should be a longer period—at least 12 months—for trade unions to adjust their rules and procedures and that there should be no automatic requirement to opt-in again after five years.

Mr Kevan Jones: Does my hon. Friend agree that this will not be difficult for many trade unions because on their application forms to join, there is a box to tick to contribute to the political fund? As someone who ran a political fund, I know that that was the case in the GMB. Is this therefore not another example of proposed legislation that is not really needed?

Kevin Brennan: Given that my hon. Friend has been physically mistaken for me, I am not surprised that our opinions are identical on this matter. I agree with him.

Mr Anderson: May I take my hon. Friend back to his comments about the work of the House of Lords? I echo the words of Lord Patrick Cormack, who was a Member of this House for 40 years. He said:

“But we do not have to advance on that at such a pace that we seriously disadvantage one of the great parties of the realm and unbalance our democracy in the process.”—[Official Report, House of Lords, 16 March 2016; Vol. 769, c. 1876.]

Does not that get to the nub of what this was all about—unbalancing democracy in this House and disadvantaging the Labour party? Lord Cormack was absolutely right. It is a shame that there are not more like him in the Conservative party in this House today.

Kevin Brennan: I pay tribute to Lord Cormack for his work on the Bill and his words in the House of Lords. He might seem to some an unlikely hero of the working class, but in this instance he has reflected what one nation Conservatism should mean. That phrase is bandied about from time to time, but his interventions and those of other colleagues in the House of Lords remind us that we legislate not just for one Parliament but for the future. I will go on to describe why it would have been very dangerous if the Government had stuck to their original plans.

The House of Lords looked for a workable way for the Government to introduce their stated manifesto commitment without it becoming a crude and clumsy device to starve the second largest party in Parliament—the Labour party—of a long-standing source of finance from the very institutions that founded it. My hon. Friend just said this in another way, but I think that the Lords have done the Government a big favour. Had they proceeded with the original proposals, they would have created—make no mistake about it—a lasting bitterness and resentment in the trade union and Labour movement and, indeed, beyond. We are grateful for the support received from other political parties.

I have no doubt, as many of their lordships pointed out, and, indeed, as paragraph 130 of the House of Lords cross-party Select Committee report noted, that the original proposal would

“make the Labour Party more inclined to take unilateral action against the Conservative Party and its funding when next in government.”

It appears that, at this very late hour, that point as hit home with Ministers, and I very much welcome that.

The Government have decided to think again about their proposals on political fund opt-ins and have tabled amendments (k) to (n) to replace Lords amendments 7 and 8. The requirement to opt into political funds will apply only to new union members. As a result, union members who have already voluntarily agreed to make contributions will not be required to opt in again to support ongoing trade union campaigns. Existing members will be required to opt in only if their union votes to establish a political fund for the first time. The Government have also conceded on the issue of five years and have allowed for a minimum 12-month transition period for unions. Union members will be able to opt in or opt out not only on paper, but through electronic means, so it is now okay to use electronic means to opt in—we will eventually get it to apply to ballots—including online forms, emails and, potentially, texts. Unions will still be required to remind members annually of their right to opt out and they can do so by using individual communications or through their usual systems for informing members, including union newsletters and notice boards.

The Government’s amendments take on board all of the core elements in the proposals made by Lord Burns’s Committee’s report, and I remind the House that it passed the Lords by 320 votes to 172. It therefore passed by an even greater majority than that which set up the Select Committee in the first place, which demonstrates the growing support for this approach.

I still believe that the proposals for an opt-in system for political funds are totally unnecessary—that should be put on the record—but we recognise that the Government’s new proposal is a substantial improvement ​on the original Bill, which would have required all members to opt in within three months and to renew that opt-in within five years. On that basis, while retaining our opposition to the Bill in general and to opt-in in particular, we will not seek to divide the House on the Government amendments, given the substantial concessions they have made.

Tommy Sheppard: I agree with the hon. Gentleman that the clear intention behind the move from opt out to opt in is an attempt by some members of the Conservative party to attack the funding of the Labour party. Does he agree, however, that our defence of the right of trade unions to engage in political activity will be more effective if we ensure that they are able to engage not just in activity to support the Labour party, but in other political action that achieves change and support, whichever party they feel serves their members’ best interests?

Kevin Brennan: It is accepted that there is a special relationship between the Labour party and the trade union movement, which founded the party. Of course, they use political funds to campaign in all sorts of way. I am grateful to all parties that have recognised the importance to our constitution of the political funds of trade unions and the vital role they play in our democracy. Trade union money is the cleanest money in politics, compared with some of the sources of money and donations to political parties, and long may that continue.

I do not want to detain the House for much longer, but it would be remiss of me not to conclude without paying tribute to all those who have made this change possible and worked so hard to improve this dreadful Bill. I include all my hon. Friends in our BIS Front-Bench team, including my hon. Friend the shadow Secretary of State; former members of that Front-Bench team who helped at earlier stages of the Bill; Members from other parties in the House who have helped to fight the good fight; and my hon. Friends in the Labour party.

I want to pay special tribute to my good friend Baroness Smith of Basildon and her team in the Lords—Baroness Hayter, Lord Stevenson and Lord Mendelsohn —as well as all the other peers from other parties and from no party at all who voted to create the Select Committee and who worked so diligently and expertly to get us to where we are today.

It is said that our constitution means that the Opposition have their say but the Government get their way. In this instance, the Opposition have had their say and, at least in part, also got their way. As a result, the legislation has had some of the most pernicious edges knocked off, even if it remains a pig’s ear.