My Lords, I start, as I did at Second Reading, by declaring my interest as a member of a union. I thank all noble Lords who have spoken in this debate. There have been some excellent speeches, which, taken together, have put the onus on the Government about the content, consultation, timing and purpose of the Bill in such a way as to leave one with the very strong impression that this is, in some sense, a very partisan measure.
If I were the Minister and had felt the strength of what was being said, I might want to crawl away and lick my wounds at this stage. The Minister does pick them. He has had this experience before, so perhaps he will learn from it.
We believe that Part 3 is unnecessary. It has been described as a confidentiality-breaching, red-tape-increasing solution to a problem that does not exist. So I invite the Minister to demonstrate to us that there is a serious public policy issue behind this proposal. When he responds, will he state as clearly as possible what he thinks the problem is, what this Bill will achieve that current legislation does not achieve and why the measures he is proposing will do more than simply increase regulatory burdens on trade unions? I hope he will do better than simply repeat what is in the BIS consultation which states:
“Trade union activity has the potential to affect the daily lives of members and non-members. The general public should be confident that voting papers and other communications are reaching union members so that they have the opportunity to participate,
even if they choose not to exercise it. As a result, unions also have a responsibility to give public assurance that they are keeping up-to-date registers”.
It is motherhood and brown bread.
We agree with that, but as the Minister well knows, union membership is already regulated by the Trade Union and Labour Relations (Consolidation) Act. Section 24(1) puts a duty on unions to maintain an up-to-date register of members’ names and addresses so far as reasonably practicable. This legislation has stood the test of time since the days of Mrs Thatcher. In recent times, unions have always had a legal obligation to maintain accurate membership lists. As it happens, it is in their own interests to do so, and the certification officer already has sufficient powers to deal with inaccurate membership records, but has not needed to do so for many years. So the Minister should, in words of one syllable, explain precisely what is wrong with that legislation.
As has been said already, we are not aware of any calls having been made to the Government to extend this provision. BIS, the certification officer and ACAS have confirmed under freedom of information requests that they have received no representations for such a measure. Not even those employer and right-wing groups that consistently call for further legal restrictions on unions have ever campaigned for this change. Can the Minister explain precisely what public concern he is responding to with these proposals?
There are a number of organisations whose list of registered members is of real importance to the public; doctors, lawyers and chartered accountants come to mind. If someone wants to check whether a professional is on the list, the accuracy of that register is key to the assurance such a register provides, so one would expect that on the lines now being suggested for trade unions there must be external, independent checks and there must be certificates in place to provide comfort to patients or clients that the relevant registers are up to date. What do we find? The Library kindly carried out a survey for us of some bodies.
Chartered accountants must belong to a recognised body, such as the Institute of Chartered Accountants in England and Wales or other membership organisation which protects the quality and integrity of the accountancy profession. I am a qualified accountant with the ACCA. Our Library’s research has failed to locate any independent membership verification of its membership list. The ICAEW’s members elect members of their council but still have no independent assurer to check the list of voters, their addresses or whether the details held are accurate and complete.
The Bar Council represents barristers, but is not a trade union, although it represents the interests of the Bar on all matters relating to the profession: trade union, disciplinary et cetera. Although the Bar Council is the source of information about whether someone is a barrister, it told the Library that its membership list is not independently verified. Solicitors are represented by the Law Society, which aims to help, protect and promote them, but its list has no independent outside person to assure the public of its accuracy and completeness.
The strangest is doctors. Doctors are required by law to be registered with the GMC before they can undertake medical practice, and the GMC’s list includes details of their qualifications and their fitness to practise problems. It is the doctor’s responsibility to be on the register, and there is no independent assurer to certify the accuracy of that record. However, the trade union to which doctors belong—the BMA—will have to appoint such an assurer to confirm its records. Perhaps the Minister could explain why it is more important to have an externally verified list of BMA members than the far more significant list of medical practitioners held by the GMC.
As is now well known, this Bill was published as the summer Recess started and was rushed through the House of Commons—so rushed that the regulatory impact assessment for Part 3 was published only in September. It has only just been made available, during the Committee stage of the Bill in the other place. As we have heard, however, it has been considered by the Regulatory Policy Committee—an independent body largely composed of senior industrialists—and has been given a rare red rating by that body. The last one was in connection to “shares for rights” in a Bill that the noble Viscount might well recall, it having been debated rather vigorously in this House.
On the impact assessment, the Regulatory Policy Committee said:
“The IA is not fit for purpose. The assessment is not sufficiently robust to justify validation of the equivalent annual net cost to business figure … It is unclear how accurate and up-to-date a membership register will have to be for a union to be considered ‘compliant’ with the proposed new requirements; or what process of investigation would be undertaken by an independent qualified assurer, or how rigorous that process would be. Thus, the accuracy of a union’s register, the time costs of the assurance process, and the fee payable to the assurer, all remain highly uncertain”.
Therefore, it is not just saying that it does not believe what is there; it is saying that the way the Bill is constructed is so vague and imprecise that it is not possible to draw a conclusion as to whether the costs outweigh the benefits that have been provided. As we have heard, the benefits are rather low. As has already been mentioned, the committee notes that the very short consultation period and the failure to follow appropriate better-regulation framework processes put in place by the Government are both factors that may contribute to the lack of a sound evidence base. This is a truly shameful state of affairs.
My noble friend Lord Monks asked the Minister to explain why the department did not follow the better-regulation framework processes. On the points of substance, will more evidence be gathered? Will we get a more detailed assessment of all likely costs to the trade unions? Will there be more evidence gathered from consultation with stakeholders? All these points were made by the Regulatory Policy Committee. Will we get a figure for the estimated cost to unions of changing the rules before the Bill finishes its consideration in this House? We need this if we are to consider this measure in the round, so we really need a reworked impact study addressing the complaints made by the independent committee. Will we have this and, if so, when will it be ready?
Having said that, there is one section on the impact assessment that is positive. Again, I would like to ask the Minister what he reads into this. It says, on the question of the one-in, two-out rule:
“The measures contained in this impact assessment are in scope of the one-in, two-out rule. The Bill will impose a net annual direct cost on trade unions, which are classified as civil society organisations”.
That being so, could we please learn what the “two outs” are that will be given to the trade unions in return for the “one in” that has been proposed?
Ministers have stated, as they are required to do, that the Bill is compliant with the Human Rights Act, but the Minister will be aware that Liberty believes that the introduction of additional compliance and scrutiny measures on trade union registers of members may constitute a breach of Article 11. That article protects the right to freedom of association, including the right to form and join a trade union. As has been said, restrictions are permitted only if they pass a test of pressing social need and proportionality. Will he explain why he thinks that this additional burden of measures on trade unions does not breach the right in Article 11(2), in the light of its potentially intrusive nature into the private affairs of union members and unions’ internal affairs? Can the Minister set out the legitimate policy aims that pass the strict test expressed in that article?
Without an adequate explanation of what the Government are trying to achieve here, far better arguments about why the existing legislation is deficient and the information to judge whether the costs imposed justify the regulatory burden being introduced in the larger unions, it is hard to see why we should not proceed to oppose the clause stand part Motion, as we have proposed. As my noble friend Lady Drake said, the unions in Britain play a significant part in the modern economy. They should be cherished, not castigated. As my noble friend Lord Whitty said, if the Government had brought forward such a burdensome set of duties to any other section of civil society, there would be an outcry. There is indeed an outcry and we should listen.
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