That is a legitimate point. I do not know whether my hon. Friend was present during the last debate, but I can tell him that the certification officer figures are pretty stark. There have been 10 determinations since 1987, none in the last eight years and six between 2000 and 2004, of which five were dismissed and the sixth did not even constitute a formal determination. A new, erroneous part of the Bill could easily cause a certification officer to be dragged into a position that affected his neutrality—which, incidentally, trade unions and their members respect. Unions and certification officers work closely together, and certification officers are always keen to make the point that they are not opposed to each other, but share the aim of ensuring that unions operate correctly and within the law.
Let me now deal with the proportionality issue that arose from the case relating to article 11 of the European convention on human rights. Liberty states that the current regime satisfies the requirement that scrutiny be undertaken to ensure public confidence in the status of any register, and that the current measures to undertake that scrutiny are proportionate.
The increased powers of the certification officer are also disproportionate. First, it may invoke its increased powers if it thinks there is good reason to do so. That is very broadly drawn, and what constitutes a good reason in any case? Might it be a vexatious claim from a national newspaper to the certification officer to have a look at a particular membership list? That was the driver behind our amendment 103 to the previous clause, which the Government have just rejected.
Secondly, the certification officer can view not only the register, but any other document that may be relevant
to determining whether there is a breach of section 24(1) of the 1992 Act and it can require people to give explanations.
Thirdly and ultimately, under clause 37 as currently written, the certification officer does not owe a duty of confidentiality to the union. The addition of a third-party inspector would be particularly intrusive and that inspector owes a duty of confidentiality only to the certification officer, not the union.
Liberty rightly concluded:
“These measures clearly go beyond what is necessary and proportionate to achieve any legitimate aim behind the proposals, if indeed there is one at all, and as such constitute a breach of Article 11 of the Convention.”
There is, indeed, a compelling argument to be made that clause 37 breaches article 11. The justification for that claim arises from the fact that there is already legislation in place to deal with many of these issues.
Amendments 111, 112, 166 and 115 are intended to clarify the need for a trade union to take “all reasonable steps” to ensure membership lists are accurate. We discussed some of that language in our debate on the amendments to clause 36. This is completely consistent with obligations under the 1992 Act to take all reasonable steps. That language and responsibility should be reflected in clause 37. There will be an inconsistency of language if we remove the reference to taking reasonable steps in the 1992 Act and replace it with language that is more stringent on the trade unions.
The primary responsibility for the alterations to any membership list lies with the individual. That is already set out in section 24(1) of the Act. However, all too often a union member may move house, change jobs or even pass away and those details will not be passed on to the union membership officer for recording in a timely fashion. In some circumstances, it cannot be reasonable for a trade union to be held wholly responsible for every part of a membership list. People can take a complaint to the certification officer resulting in an in-depth investigation at great cost to both the public purse and the trade unions, when the 1992 Act clearly states that the responsibility for ensuring the accuracy of an individual’s data on a trade union membership list lies with the individual, not the union. If the union has taken “all reasonable steps” to make sure that list is accurate, such a matter should not fall within the remit of this Bill.
It should be the case that the assurer can make a determination that the union has, in so far as is reasonably practicable, ensured the entries in the membership register are accurate. That is what amendments 111 and 112 would achieve. They would give the assurer the power to qualify the membership audit certificate to say that information from employers or members has not come forward in a timely fashion and the union has taken all steps to ensure the information is accurate.
The issuing of any membership certificate will be based on information for just a snapshot in time of that particular moment and day. We have learned from the—late—impact assessment that about 9% or 10% of trade union membership flows in or out of a trade union at any given period. For a major trade union, that amounts to an awful lot of people to keep track of. If a union has taken “all reasonable steps” to ensure their
membership list is accurate, it should be taken into account that the list will only be a snapshot of a particular moment in time. It should be possible to clearly state on the audit certificate that any inaccuracies are not the fault of the trade union and therefore the audit certificate is issued with that qualification. The clause as currently drafted would not allow for that.
Importantly, for that process to operate correctly the employers also have a duty of responsibility to the trade union membership audit certification process. Amendment 115 would give the assurer the right to access reasonable information from employers if it was determined that that information would be necessary for the performance of the assurer in determining the accuracy of a membership list. It would also allow for access to data that may satisfy the assurer that the trade union has taken all reasonable steps in compiling the membership register. Many unions have indicated that a lack of information from employers provided in an efficient manner is the main cause of the vast majority of inaccuracies in their membership lists. Giving the assurer the powers to make reasonable requests to employers for information means that there can be confidence that membership registers are indeed accurate. If anything comes out of this process and this bad part of the Bill, it might be that the assurer, as an independent person, could help the trade unions with some of those relationships with the employers, to ensure that the data coming from the employers make the lists that trade unions have far more accurate.