My Lords, I will now respond to the group of amendments tabled to Clause 37, focusing on the role of the independent assurer, their appointment and removal, and the assurance process. I will deal with the question that the clause stand part of the Bill at the same time.
The Bill will provide greater visible assurance of the maintenance of trade union membership registers to members, employers and the wider public. Clause 37 gives credibility to that assurance by requiring independent scrutiny. Increasingly, a number of unions have become large organisations, serving a membership that frequently covers a variety of employers and workplaces. With this comes administrative complexity, as well as increased public interest in a union’s scope of influence. The nature of union membership data means that it decays easily, as has been mentioned. It is reasonable to think that someone moving house might forget to notify their union, for example. This is recognised in the existing duty for a union to maintain an accurate membership register,
“so far as is reasonably practicable”.
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Unions currently provide assurance in relation to financial matters. Their accounts are given credibility as they must be validated by an auditor. I believe that when in future a large union provides an annual membership audit certificate assurance, it should constitute a similarly independent assurance. Clause 37 therefore
requires trade unions with more than 10,000 members to appoint a qualified independent person—an assurer— who will issue the annual membership audit certificate, stating whether the union’s membership system complies with the duties set out in Section 24. The assurer owes a duty to the union to provide the certificate and to carry out inquiries as necessary. They have the right to access the membership register and other relevant documents, and to require information from the union. Exactly which information may be relevant will vary between individual unions. It will be for the union to agree terms with the assurer. Clearly, the union does not have to provide information to the assurer unless it is relevant to the register of members’ names and addresses.
Amendment 118E is one of several amendments that reflect concern regarding the handling of union member data. The Government understand the sensitive nature of union membership data, and have ensured that there are legal safeguards in place, both through existing legislation and introduced by the Bill, to protect it. I therefore hope that I can reassure noble Lords that their concern here is misplaced. The assurer will not be able to provide assurance of a union’s compliance with the duty in Section 24 without access to the membership register. However, this access is subject to existing legal protections, as well as additional safeguards in the Bill.
The amendment would make the assurer owe a duty of confidentiality to the union and its members, and would require the assurer to comply with the union’s obligations in the Data Protection Act. The amendment is unnecessary. The assurer will already owe a contractual duty of confidentiality to the union, as stipulated in the Bill. The assurer is prohibited from disclosing member data unless in specific permitted circumstances. Furthermore, the Data Protection Act will apply because the assurer, in performing their statutory functions, will be a data controller under the Data Protection Act.
I know that the noble Lord, Lord Whitty, has a lively mind, as he chose to provide his own definition for the assurer. If I read him correctly, it was perhaps someone from an insurance background who came to knock at your door—or perhaps it a tea-break TV programme. However, I will attempt to clarify the role of the assurer. It is essentially to give an assurance. It is important that the assurer has widespread credibility with unions, their members and the public. They will therefore be an independent and expert third party and the Secretary of State will make an order setting out either which organisations are eligible or listing the criteria that must be met for a person to be able to act as an assurer.
At the moment we anticipate these to be recognised professionals such as solicitors, auditors, or independent scrutineers. In discussions with unions and others during the summer, there was general agreement to these professionals. This is similar to the existing system for scrutineers. Currently scrutineers, which are eligible to oversee ballots carried out by trade unions, are listed in an order made by the Secretary of State. In the other place, the Minister for Employment Relations and Consumer Affairs committed to consult on the order setting out who would be eligible to be an
assurer. Clause 37 provides an order-making power for the Secretary of State to set out who is qualified to be an assurer. A person is disqualified should their independence or capability be questionable. However, beyond these conditions it is for the union to appoint an individual and define their contractual terms. Union rules will need to be amended to include provision for appointing and removing an assurer.
Amendment 118F would remove the provision for individual unions to define in their rules a process for the appointment and removal of an assurer. The intention appears to be to require unions to comply with specific requirements similar to the appointment of independent scrutineers. This would significantly limit the discretion afforded to unions in their compliance with the new requirements. The amendment would also remove some of the minimum requirements in the clause for the appointment and removal of an assurer. The Government’s approach is to allow individual unions the flexibility to identify the best process for the appointment and removal of an assurer. This reflects the unique nature of trade unions and the fact that they vary hugely in size, type and complexity.
The minimum requirements set out in the clause are to protect the longstanding principle that unions are accountable to their members—a principle which has been supported by all sides during the progress of this Bill. The Government believe that it is important that the removal of an assurer is by a resolution of the union’s membership or delegates.
The clause also provides an exemption from the requirement to appoint an assurer for newly created unions and those with 10,000 members or fewer. For larger unions, it is appropriate that a credible independent assurance is obtained. However, we are anxious not to prohibit the creation or existence of smaller unions, and this is one of the key ways in which we are ensuring an appropriate implementation of the Government’s overarching policy objective.
Amendment 118G is another that reflects concern about the handling of sensitive data by the assurer and is intended to test the strength of the provisions for protecting this. The amendment would prevent the appointment or reappointment of an assurer in the case of a breach of the union’s confidentiality, a breach of their statutory duties or terms of appointment, or where there are reasonable circumstances not to reappoint. I agree with the importance of rigorous safeguards with regards to the handling of union data and with the view that an assurer who has breached these obligations must not be reappointed. However, the amendment is unnecessary as this is already achieved by current legislation and the Bill as drafted.
First, the Secretary of State will define who is qualified to be an assurer. Secondly, the union will have discretion both to select the assurer and to define the detailed terms of their role. If for any reason the union has doubts about the assurer’s suitability for the role, including their handling of sensitive member data, it can pass a resolution to remove the assurer.
Amendment 118H examines the nature of the assurance and effectively raises the level of the test that is assessed. Instead of giving an opinion on whether the union’s systems for maintaining the register
are satisfactory, it requires the assurer to state whether the union is compliant with the duty in Section 24 to maintain a register that is accurate and up-to-date.
I understand that noble Lords may be keen to explore the assurance process further. The Government, while allowing unions flexibility to define this, is also keen to support a smooth transition and will therefore produce guidance. However, I am concerned that a consequence of the amendment would be to make the assurance process far more costly and onerous to the union, both in terms of the role of the assurer and in the test that the union must meet with regards to its register. A systemic assessment is the appropriate and desirable approach. The appropriate method for assessing the maintenance of membership records will differ hugely between a narrow, sector-specific union with 15,000 members, such as the British Airline Pilots’ Association, and a union with a million members across a range of employers and job types.
In practical terms, I envisage that the assurer will need to understand how the records are compiled stored, and updated. Specifically, they may look to establish whether the union collects the data accurately from new members, reminds members to keep their addresses up-to-date, makes it easy for members to do this and updates the register promptly once changes are notified. We also expect that an assurer will be interested in the data-cleansing processes that larger unions use for electronic databases. Some assurers may also choose to undertake a number of spot checks of the accuracy of a proportion of member entries. However, we have not specified this detail in statute because the requirements will vary between individual unions.
It appears that Amendment 118J is designed to ensure that a union will not be held accountable for inaccuracies that were outside of its control. The amendment would create an additional element of the membership audit certificate, requiring the assurer to state whether, in the assurer’s opinion, the employer had shared “timely and accurate” details with the union and whether,
“any other aspects … have been out of the control of the trade union in the maintenance of the membership register”.
This amendment is unnecessary for achieving the intended outcome. The existing duty to which the new provisions relate is for unions to maintain a register that is accurate and up-to-date but only “so far as is reasonably practicable”. This reflects the fact that it is impossible for union records to be 100% accurate all of the time. I am also concerned that this amendment could potentially increase the costs of assurance for the union by adding to the role of the assurer in this way.
Amendment 118K would limit the assurer to only being able to require information from the union’s data controller rather than the union’s officers. The intention here is to ensure that only those who are required to comply with the Data Protection Act will deal directly with the assurer. This amendment is unnecessary because wherever any individual handles sensitive data they will always be required to comply with the Data Protection Act. The flexibility in the clause as drafted is necessary because the assurer may
need to approach both those responsible for handling member data and those who have experience of the processes by which this is maintained in providing the assurance.
The purpose of Amendment 118L appears to be to allow the assurer to approach the employer to request information, presumably to allow for instances where the employer may hold more recently updated information than the union. As I have already stated, the union is already sufficiently protected from being penalised for errors that are outside of its control by the wording of the original duty in the 1992 Act. I therefore consider this amendment unnecessary. I am also concerned about the assurer directly approaching an employer requesting information and the risk that this allows the employer a level of knowledge about union membership that the individuals may not be comfortable with. This matter was raised earlier by the noble Baroness, Lady Drake, who is not in her place.
Amendment 118M is another example of seeking assurance that sensitive union member data will not be placed at risk. The amendment states that the assurer must comply with the Data Protection Act. As I have set out already, this is unnecessary because the assurer will already have to comply with the Data Protection Act by virtue of their role. The assurer will also be subject to the additional confidentiality provisions that are introduced by the Bill and may be subject to other contractual terms that are agreed with the union.
Amendment 118N appears intended to strengthen the steps an assurer must take to prevent the disclosure of union member details. However, I cannot see how the amendment would work in practice. It would require the assurer to take “all steps necessary” rather than “all reasonable steps”, which seems to suggest that there are some steps which would be necessary but would not be reasonable.
Amendment 118P seeks to amend these permitted circumstances by preventing the disclosure of member data in any circumstances except with their consent or where required as part of criminal proceedings. The effect would be to defeat the Government’s policy intention of giving assurance of unions’ compliance with the existing duty in Section 24. The amendment as drafted would, in practice, prohibit the certification officer, inspector or assurer having the necessary access to the register as they would be unable to identify the member in order to seek their consent.
The additional protection of member privacy that is sought by this amendment, and by many others discussed today, is unnecessary. There has been broad speculation that the provisions in this part of the Bill present a potential risk to sensitive membership data. I wish to reassure the House that this concern is misplaced. The changes that we are making are modest.
The powers of investigation introduced for the certification officer are consistent with those he already exercises in other areas, and there is no evidence of a problem here. The certification officer, the inspector and assurer will all be bound by a set of strict obligations in their treatment of union member data. Furthermore, the proposals in the Bill will not allow other parts of government or employers unauthorised access to member data.
The noble Lord, Lord Monks, raised the issue of how the new regime could be justified on human rights grounds, and I would like to answer his question. As I have said before, the existing duty to maintain an up-to-date membership register has been around since 1984. Having agreed that a membership register is necessary, it follows that there should be an appropriate and effective enforcement regime. These provisions deal with inadequacies in the existing regime. At the moment a member cannot know whether there are widespread inaccuracies in the register, and the certification officer cannot know if there are inaccuracies because the union is under no obligation to disclose documents. If there is good reason to believe that a union may not be complying with Section 24 duties, it is important that this can be properly investigated. This investigation offers protection for union members. If the union is not complying with the overarching duty in Section 24, there is also the possibility that it is not complying with other obligations regarding the handling of sensitive data.
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The noble Lord, Lord Whitty, and my noble friend Lord Tyler discussed the political affiliation of trade union members. The Government’s position is very clear. We have no current plans to look at trade union legislation more widely. We have offered to assist the Leader of the Opposition with his planned reforms of union member participation in trade union political levies, if he wishes. I just wanted to make our position extremely clear on that point.
The noble Baroness, Lady Turner, said that these provisions will act as a deterrent to prospective new union members due to the concerns about confidentiality. I do not believe that the certification officer’s access to the membership register will interfere with the individual’s right to join a union. The certification officer already handles membership data under the current regime and there is no evidence of a problem with his handling of sensitive data; nor is there evidence that this has acted as a deterrent to joining a union. Protections in the European Convention on Human Rights and in the Data Protection Act will continue to apply as they do now.
I hope that in my rather lengthy response I have answered all or nearly all of the questions that were raised. I may owe the noble Lord, Lord Stevenson, some answers to his questions. I ask the noble Lord, Lord Monks, to withdraw the amendment.