My Lords, my first point is that I do not wish to make any reference to reports that I read in the Sunday Times yesterday. As the noble Lord, Lord Monks, correctly said, the certification officer has been called in to investigate; it is not for me to comment further and it is for him to progress or otherwise.
Secondly, I want to acknowledge the many distinguished Members opposite who have led unions and have had substantial responsibility for individuals within the unions in the past. Some of these unions have been very big, with many hundreds of thousands of members, so I want to thank those noble Lords for their contributions. I realise that in the past they have been very much in the public eye with all that has gone on over several decades.
I shall deal with the amendments to Clause 36 and the question of whether the clause should stand part together. Clause 36 is intended to give widespread assurance that unions are able to contact their members
and that, as a result, union decisions reflect the will of their members. This should enhance the democratic credibility of union actions to a wider audience. The noble Lord, Lord Stevenson, could not have put it better. This is important because unions have extensive influence—in public life and in the daily lives of their members. Actions they take can also have an impact on non-members. As the noble Lord, Lord Monks, and the noble Baroness, Lady Turner, have rightly highlighted, the statistics demonstrating the value that the public place on the unions is high. This is why there is a need to be sure that the registration lists are up to date.
Union members work across a range of critical areas, including in the public sector. Union membership is around 56% in the public sector and 14% in the private sector. We do not want to change or inhibit the vital role that unions can and do play in society—which was raised by the noble Baroness, Lady Drake—but we want to ensure that there is confidence in their accountability to their members. Since 1984, there has been a statutory duty on unions to maintain a list of members’ names and addresses. This is currently enshrined in Section 24 of the Trade Union and Labour Relations (Consolidation) Act 1992, which requires unions to keep the list up to date,
“so far as is reasonably practicable”.
This register will be a union’s primary source for ensuring that its communications, including ballot papers, reach members. I think everyone agrees with the principle of maintaining the register. That principle is not under scrutiny today, and the existing duty remains unchanged. However, there is no mechanism to require reporting on compliance with the statutory duty.
Clause 36 introduces a reporting regime that is proportionate to the practicalities of the duty to which it relates. Unions will be required to supply an annual membership audit certificate to the certification officer, alongside the annual return. As this provision is about giving widespread assurance, all unions will have to make the most recent certificate available to those who request to see it, either free or for a reasonable charge. The certification officer will also have to keep copies of all certificates and allow the public to inspect them. This addresses the fact that there is currently no real way for members, employers or the wider public to check how far the existing duty is being complied with. Finally, Clause 36(3) and (4) ensure that a trade union can discharge the new duty on behalf of its branches and that federated unions must comply with the new duty.
Amendment 118A—and Amendment 118D, which is consequential on it—seeks to limit the duty on unions so that they do not have to submit a membership audit certificate every year, but only if a complaint is made. In practice, if a complaint is received by the certification officer and he investigates, he will want to be satisfied that there is no breach of the duties in relation to the register. If he discovers such a breach, it would be more appropriate to provide a remedy as soon as is reasonably practicable, rather than to impose a reporting requirement. If there were no annual reporting requirement, the legislation would not achieve the level of routine assurance that we want for union members and the wider public. Only individual union
members have the right to check their details on the membership register, and they must be predisposed to do so. Even if the member does this, he or she has no right to see all of the register and, in any case, cannot know whether other names and addresses are up to date. Nor can the member know who should or should not be on the register. Therefore the member cannot ascertain or guarantee the accuracy of the register in its entirety. If the member checks the register and finds problems with the accuracy of his or her details, they can make a complaint to the certification officer. However, only the member has the right to do this and, as I have said, they will not be able to determine the accuracy of the register as a whole. If anyone else has reason to believe there might be inaccuracies, they could not make such a complaint. Even if the certification officer received allegations about the union’s register, under the current law he would have insufficient powers to investigate.
I am aware that unions and some noble Lords have argued that there have been a very low number of complaints about union registers. However, given the limitations of the existing regime that I have just set out, that is not a particularly effective indicator of the overall accuracy of union membership registers. Over the summer we carried out a targeted consultation exercise, which was mentioned by noble Lords opposite. Evidence from that suggests that unions face difficulties in keeping their records updated. The noble Lord, Lord Monks, stated that in his opening speech and I will say more about the consultation on it later. The CIPD commented:
“Unions have stated difficulties at times maintaining the addresses of members”.
A member of the Engineering Employers Federation also commented that trade unions,
“do not have a unified way of tracking membership and it remains difficult for them to do so”.
I believe that most noble Lords opposite acknowledge that.
When these measures were debated in the other place, a number of references were made to the challenge of maintaining registers because of the high degree of turnover in members, which was alluded to this afternoon. Around 2 million people move in and out of union membership a year, which equates to around one in four union members. That means that if a union does not regularly update its register, it could quickly become inaccurate. We propose a modest and proportionate approach to providing greater assurance that registers are as up to date as is reasonably practicable. We are not changing the way in which unions record member details, nor are we changing the existing duty to keep a register. Our focus is on the reporting requirements and effective enforcement. That means greater confidence that union members are receiving all necessary information, including the opportunity to vote on key matters such as a new general secretary. That also means greater confidence that when unions decide that they need to take industrial action—which is entirely their right—those affected know that members have been contacted and given the opportunity to vote. Membership audit certificates will be beneficial to unions, give confidence to individual members and more widely enhance the credibility of their decisions.
Amendment 118B would amend Clause 36 to allow a union to delay submitting a membership audit certificate if it is launching an appeal against it or the certification officer’s acceptance of it. I appreciate that unions will want to ensure that an assurer does not, mistakenly or otherwise, send a qualified certificate to the certification officer without the union knowing about it. I hope that I can provide some reassurance that this amendment is unnecessary. The current drafting of Clause 37 ensures that the assurer will send a copy of the membership audit certificate to the certification officer only,
“after it is provided to the union”.
Therefore the union will have seen the certificate and will have an opportunity to engage with the assurer. If the union is able to demonstrate that the certificate is inaccurate, it should be able to remedy it at that point. Furthermore, unions will themselves appoint their assurers and agree their contractual relationship with them. That gives a union discretion to require an assurer to allow the union to comment on any draft certificate or to discuss concerns before it is issued to the certification officer. However, we believe that it is reasonable to require that qualified certificates are sent to the certification officer as soon as reasonably practicable after they are given to the union so that he can decide what steps to take. We regard this as a necessary part of the assurance process.
If a union is required to appoint an independent assurer to provide a certificate because it has more than 10,000 members, that certificate is the membership audit certificate for the purposes of Clause 36. Clause 36 also sets out what is necessary for unions with 10,000 members or fewer. Those unions will be able to authorise a union officer to sign off the certificate, with a statement that, to the best of their knowledge and belief, the union has complied with its duties under Section 24. As we expect smaller unions to have a less complex register, we think it is reasonable to consider that a union officer will have sufficient familiarity with the content to be able to make such a statement. Amendment 118C seeks to alter Clause 36 so that the assurer would no longer provide the membership audit certificate for unions with more than 10,000 members. That would mean that all unions would provide a self-assurance that they are complying with the statutory obligation under Section 24 of the Trade Union and Labour Relations (Consolidation) Act. This amendment would not give sufficient assurance that unions are maintaining accurate and up-to-date registers and can contact their membership. We already have a regime which relies on individual union members actively checking their membership details.
Nowadays, some unions can be extremely large organisations. For example, as many noble Lords opposite will know, UNISON has 1.3 million members and Unite has 1.5 million. To put that in context, the NHS has around 1.7 million employees. Record-keeping for such large organisations is likely to be complex, and maintenance will need to be ongoing to ensure that the register is up to date, particularly given the high level of reported churn in union membership. Equally, where a union consists of many individual branches with individually held membership information, regular and diligent maintenance of the membership register as a
whole will be critical. The noble Lord, Lord Monks, recognised that. We acknowledge that these lists cannot and will not necessarily be 100% accurate. In addition, the larger the organisation, the more probable that communication between the union and its members relies on being written rather than oral. Branch secretaries are unlikely to know all their members and may not even have met some of them. It is therefore appropriate that there is independent assurance for larger unions.
This amendment could also have the unintended consequence of placing additional burdens on larger unions. In defining the independent assurance, we have focused on the assurer awarding the membership audit certificate to larger unions on the basis that they have adequate systems in place to allow them to comply with Section 24. That is because we considered it unduly burdensome and unreasonable to expect the assurance to be an audit of every individual record. The effect of the amendment, however, would be to require these unions to give assurance that they have complied with Section 24 to the best of the union officer’s knowledge and belief. That means that the officer who signs the certificate essentially guarantees, to the best of their knowledge, that the register is accurate and up to date—again, so far as is reasonably practicable. We believe that this could be much more onerous for larger unions than what the Government proposes. The annual assurance of unions’ compliance with this duty will demonstrate to members, employers and the public that unions are diligent in their maintenance of such complex records. It will also provide greater confidence that union activity is accountable to the membership.