House of Commons
Friday 22 October 2010
The House met at half-past Nine o'clock
Prayers
[Mr Speaker in the Chair]
John McDonnell (Hayes and Harlington) (Lab): I beg to move, That the House sit in private.
Question put forthwith (Standing Order No. 163).
Lawful Industrial Action (Minor Errors) Bill
9.34 am
John McDonnell (Hayes and Harlington) (Lab): I beg to move, That the Bill be now read a Second time.
This measure is the first private Member's Bill of the new Parliament, and several other excellent Bills, which I mainly support, are also listed for today. The previous Parliament lost the confidence of the nation as a result of the expenses scandal, but also through the way in which we dealt with our business. Private Members' Bills were used almost as toys, and talked out when there was real legislation to be made. I hope that in the new Parliament, with so many new Members, we will treat private Members' Bills differently-in the right manner for addressing serious issues, with proper discussion. On that basis, I urge all Members to consider matters carefully this morning and allow a Division on the Second Reading of each Bill so that the will of the House can be tested. If there are disagreements, they can be ironed out in Committee and then at our final opportunity on Report.
Mr Peter Bone (Wellingborough) (Con): Will the hon. Gentleman give way?
John McDonnell: One of the techniques for delaying Bills was intervention after intervention. I am no longer willing to participate in that charade. I will take two or three interventions, but it negates the purpose of the House if we allow interventions that simply delay proper democratic decision making.
Mr Bone: I agree entirely with the hon. Gentleman's case and I think that reform is needed. However, if we cannot have a debate before we vote, does he believe that a Bill should still go into Committee?
John McDonnell:
I understand the hon. Gentleman's point. He has intervened very thoughtfully several times in debates on legislation. I hope that we can structure our business co-operatively to allow debate on all measures on Second Reading. Putting away childish toys and the puerile behaviour that has occurred when considering
private Members' Bills in the past would show that we had learned some lessons from the previous Parliament and be a sign of maturity.
The Bill deals with trade union rights and the rights of employers. The measure is extremely small-a couple of clauses-but it could have a significant impact on restoring basic civil liberties and changing the climate of industrial relations in this country. Private Members' Bills are intended for such small reforms. I shall give some background and speak for a short time; then we can hopefully have a proper debate and move to a Division.
Trade unions have existed in this country for more than two centuries. Statements from every political party in the House support and respect the role of trade unions in representing their members. One of their main roles is collective bargaining on behalf of their members on pay, conditions at work, health and safety and other matters.
However, part of collective bargaining is also unions' ability to take industrial action when negotiations fail. That can take many forms: work to rule, an overtime ban and, yes, on occasions, when everything goes wrong, as a very last resort, the right to withdraw the labour of trade unionists. There is no explicit right to strike in British legislation-there never has been. If a trade union induces its members to take industrial action, it is still a tort in civil law and can therefore be injuncted against.
However, since the Taff Vale judgment and the trade union legislation in 1906, trade unions gained immunity from legal action being taken against them for tort, which was usually the breaking of a contract. That legislation lasted in its general form until the 1980s. However, in the 1980s and 1990s, 10 successive pieces of legislation attached conditions to that immunity. I was around at the time and heard the debates in this House, and I have looked over them again. The Conservative Government's stated intention at that time was to ensure and secure the democratic rights of individual trade unionists to participate in decisions on industrial action and to be heard.
That was the intention of the original legislation. It meant that a union was protected in law only if it first conducted a secret postal ballot that was independently scrutinised. Other conditions were added later, including that the employer be notified in detail of the balloting procedure and who was to be balloted, and notified of the outcome. The employer was then to be given a period of notice before any industrial action.
As I said, there were 10 pieces of trade union legislation in the '80s and '90s that apply conditions to that immunity. For employer and trade union alike, that created a complex and extremely arduous process that trade unions had to abide by if they wished to take industrial action. The code of practice on industrial ballots and notice to employers was developed-it is dear to every trade unionist's heart-and approved by the House in 1990. It was revised in '91 and again in '94, and added to in 2000. The code statutorily required trade unions to provide, for example, the exact number of trade union members who were to be balloted, details of their workplaces and the categories of those to be balloted. It also required the union to keep meticulous records of the members' addresses, jobs and workplaces.
That is complicated in itself, but over time, with different industrial practices, particularly the sub-division of companies, outsourcing and privatisation, it became increasingly so. There is now a requirement to produce a matrix of information, which is onerous and complex. Nevertheless, unions have sought to abide by the code, as best they can, to ensure that they retain their immunity. The legislation even goes into the details of what will be written on the ballot paper and how the result is reported. Failure to satisfy any of the conditions renders the union open to injunction.
The House realised that it was increasing the complexity of the legislation, that people are fallible and that mistakes would be made. Therefore, section 232B of the Trade Union and Labour Relations (Consolidation) Act 1992 provided that a trade union that failed to comply with the specific requirements would still be protected if there were a small, accidental mistake in the balloting procedure or a failure of another sort that was unlikely to affect the result of the ballot. If for those reasons the trade union failed to comply with the specific requirements, it would still be protected and have immunity.
That was a reasonable decision by this House. The problem is that it has not worked in practice as was intended. I do not think the wishes of the House have been translated to the real world, because of a series of legal actions. Legislators thought they were providing protection from accidental, minor error, but that has not happened. In fact, in a succession of court cases, a minority of employers have used minor errors in the balloting or notification process to secure injunctions and prevent the implementation of the majority decision of the trade union. Those judgments have resulted in a lack of clarity about whether a mistake is accidental or minor. The scope of the exceptions is also unclear: do exceptions include balloting but exclude the notice procedure? There is also a degree of uncertainty about whether a particular error, no matter how minor, affects the overall outcome of the ballot.
Lord Chief Justice Lord Judge picked up the irony that legislation enacted in this House to ensure and protect the democratic right of individual trade unionists to vote and participate in decisions on industrial action is now used to prevent the democratic wishes of those people being respected. That extraordinary irony has occurred as a result of those individual decisions. The judgments frustrate the democratic process that this House thought it was installing and strengthening within trade union legislation.
There are many examples, but I shall provide only a few, based on cases that I have had some involvement in. We have briefings on them from the TUC and the individual unions. By the way, this was one of the key issues debated at the TUC conference this year-representatives of all political parties were present-and unanimously, the TUC supported the promotion of the Bill to create a better climate of industrial relations.
One dispute that has soured industrial relations in this country occurred in my constituency-Unite v. British Airways. In December 2009, Unite undertook a ballot for strike action. There were 12,000 workers and the turnout was 80%, which is greater than the turnout of electors for any Member of this House. Some 92.5% of those who voted did so in favour of industrial action.
An injunction was granted on the grounds that during the balloting period, 811 union members were offered and took redundancy. The employer sought and gained an injunction because it successfully argued that those 811 people should not have participated in the ballot, even though the union was not to know which of its members would take redundancy, and even though 811 votes had no material effect on the ballot. At that stage of the dispute, I genuinely thought we could achieve a negotiated settlement, but the injunction set us right back to square one. It alienated all those who participated and exacerbated the situation.
Let me give another example. EDF energy injuncted the National Union of Rail, Maritime and Transport Workers in 2009. The RMT was in negotiations about a small number of its members in three separate workplaces. They were listed on the union's books as "engineers/technicians". The union had been in negotiations with the employer on wages and conditions, job evaluations and a range of other issues. There had been dialogue with the employer for a period of time, so it was clear who the negotiations were about and the employer clearly understood. However, the employer gained an injunction because the RMT listed the workers as "engineers/technicians" and the employer said that although it listed engineers, it did not have a "technicians" category-people doing those jobs were characterised as fitters and other grades.
EDF won an injunction, but that only exacerbated the situation. I do not know of a case in which a re-ballot following an injunction has not resulted in a greater majority for industrial action. Parliament legislated to give, secure and enhance trade unionists' democratic rights, but it also legislated to try to improve the industrial relations climate in this country.
Some of the examples are quite staggering and it is difficult to see how they were justified in court, but they were. Let me cite that of Metrobus v. Unite in 2009. Some 90% of those working for Metrobus who were balloted by Unite voted in favour of industrial action. Such ballots are usually undertaken by the Electoral Reform Society, and the ballot result was sent to the union, but there was some delay in passing the result from the union to the employer. From reading the judgment, it looks as though the result went to the office but by the time it got handed to an official it was gone 5 o'clock, so it was not sent to the employer that night. So it was 20 hours later that it was sent to the employer.
The employer then sought and gained an injunction on the basis that the notice was not provided promptly enough. It was a 20-hour delay. At best, from the close of the ballot to when the employer received it, no more than two and a half days had passed. To be frank, that is how long it takes to deliver a letter first-class virtually, but the injunction was granted. Part of the decision of the court was based on the fact that the union had not put at the bottom of the paper that the information it had on its members was contained on its computer register and it was classified. A phone call from the employer to the union could have solved that one-"Where did you get this information? Where is this list?" It is the norm to put down that information, particularly so that it can be checked against the computer data.
I want to mention one final case: British Airways v. Unite, again in my constituency. The High Court granted an injunction on the second ballot because Unite had
not reported the full result. There were two grounds for the decision: first, United had not mentioned in an e-mail sent round or on the website that there were 11 spoilt ballot papers out of 12,000. The union received the notice at 3.59 pm. By 4.45 pm, the report was given to union representatives, who put copies on the notice boards of the crew report centres-where the crew assemble as they go on duty-within 30 minutes. They were made available in union offices and posted on displays on stands outside the offices in my constituency and in other airports. Representatives handed members the report in the crew areas. A press release was put on the website, and text messages and e-mails were sent to every member. People who work for BA are required to use their computer every day to get their rosters; it is a job requirement. The cabin crew were informed. Yet the company gained an injunction, because it was decided that the union had not fulfilled its responsibility to engage in active communication. I do not know what more it could have done.
There was real anger in my constituency about this injunction. Some of the employees concerned had never been on strike in their lives. I had people in my office in tears, including young women who had never before been involved in industrial action. They could not believe what was happening to them. They thought that the vote was a democratic process and that, regardless of whether they voted yes or no, their wishes would be respected, but they were not. There was some good news though: the union went to the Court of Appeal and only by majority-the court was split-was it decided that the union had complied with the communication requirements.
Lord Chief Justice Lord Judge commented on the irony of an employer relying on the provisions designed to protect trade union members in order to circumvent their wishes. It is extraordinary. Lord Neuberger dissented, but Lady Justice Smith argued- rightly, I believe-that the relevant legislation was not intended
"to create a series of traps or hurdles for the union to negotiate",
"to ensure a fair, open and democratic ballot."
She also introduced the concept that, where there is substantial compliance with the provisions of the legislation, the decision should be appropriate and judged accordingly. The problem was, however, that the judgment was split, and we have no idea what the next judgment will be. Such judgments rely on the individual decisions of individual judges, who often allow an injunction to be made, dragging us into the appeals process. That is destroying the industrial relations climate in certain sections of our industrial base.
As Lady Justice Smith said, unfortunately the relevant labour legislation sets traps and hurdles that were never intended by the House. I have introduced my Bill to give clarity to the original decision and intention of the House when it passed that legislation, and to restore the provision that the House thought it was implementing in the real world. The Bill does not seek to alter the core trade union obligations. A union organising an industrial ballot would still have to comply with the requirements to give seven days' notice of a ballot, for it to be independently organised and scrutinised, to inform members and employers of the result and to give seven days' notice of industrial action.
My Bill does not propose changes to the requirements of each of these stages; it simply addresses the consequences of technical and minor non-compliance with any of the stages of the process. It would bring our law that bit further into compliance and consistency with the UK's obligations under the European convention on human rights, the International Labour Organisation's standards and other domestic law. For example, under electoral law, under which we have all been elected, minor errors and even crimes that do not affect the overall result are disregarded.
The Bill would amend section 232B of the Trade Union and Labour Relations (Consolidation) Act 1992 to allow for small, accidental failures in respect of the requirements to give notice of ballots and industrial action, to give notice of its result to employers and members, and in respect of the ballot itself. It would complete the intention of the original legislation and covers the gaps interpreted by the courts. Such failures would be disregarded where there has been substantial compliance with the process itself, and the employer would be able to establish substantial compliance because of the level of information that would still be required to be given to the employer and the members themselves.
Minor errors would also be disregarded where the failure
"is unlikely to affect...the result of the ballot"-
exactly as was intended by the House-
"or (in the case of a notice) a reasonable recipient's understanding of the...notice."
So the latter provision applies where a reasonable person can be expected to understand what was written on the notice before them. Where a union claims substantial compliance, the burden will be placed on the employer to prove non-compliance. That is not an onerous task, because during the interlocutory process the employer only has to demonstrate that there is a serious issue to be tried. It does not have to prove that something has gone wrong; it just has to say that there is an issue worthy of being tried and heard before the court.
Finally, I stress that the Bill would not lessen the obligations on trade unions seeking to organise industrial action, but would merely apply where there are small, accidental failures, particularly on notification and balloting. There would be no decrease in the amount of information to be provided to the employers, so it would not make it easier or harder for them to plan for industrial action. It would bring industrial action legislation into a consistent relationship with electoral law and practices generally, and more into compliance with ILO standards and the standards, rules and regulations set by the European Court of Human Rights. This is a minor Bill that could have significant implications in improving the climate of industrial relations in this country at a time when it is most needed, and I commend it to the House. This small private Member's Bill would allow courts to interpret the will of the House as originally intended, and I hope that it gains the support of all parties.
9.59 am
Mr David Nuttall (Bury North) (Con):
May I thank you, Mr Speaker, for calling me to speak in this Second Reading debate? It is a great honour and privilege to have the opportunity to speak on this first Friday sitting of this new Parliament. Indeed, not only is this the first
Friday, but I am the very first speaker to be called other than the promoter of this, the very first private Member's Bill, of the many the House will no doubt consider, not only in this Session, but throughout this Parliament.
I should start by declaring an interest, in that I am the president of CAW-Conservatives at Work, which is the new name for Conservative Trade Unionists-for the north-west region. To be fair, it is some years since the name was changed, from the CTU, as it was back in the 1980s, to Conservatives at Work. The name was changed to reflect the fact that the organisation accepted not only members of a trade union. Indeed, there were many other members who had never been members of a trade union, but who were nevertheless interested in industrial matters and industrial relations generally. I have never been a member of a trade union myself, although- [ Interruption. ]
Mr Speaker: Order. There is a lot of chattering taking place. Whether Members are yet captivated by the hon. Gentleman's speech I do not know, but they should certainly give themselves the chance. We need a more orderly atmosphere; this is rather unconventional. I call Mr David Nuttall, who I feel sure will shortly address the Bill.
Mr Nuttall: I will indeed, Sir, but I feel it important that I should declare my interest.
Mr Angus Brendan MacNeil (Na h-Eileanan an Iar) (SNP): Is it the hon. Gentleman's intention to talk out this Bill? Are we going back to the old tactics, or is he being constructive?
Mr Nuttall: I intend to take interventions, as is the normal custom in this House. I have no intention to speak at great length, but I look at it like this: the public out there expect the other side of the argument to be fairly put, and that is what I intend to do, because I am not persuaded that the Bill is merely a technical measure. Nobody would have gone to the time and trouble of bringing this matter before the House if it was such a trivial matter. It is not trivial; it proposes to change the law of the land. It deserves careful analysis and detailed examination, and that is what is going to happen on the Floor of the House this morning.
To return to the CTU, let us not forget that there are many members of trade unions who are not paid-up members of the Labour party. There are many who are members of the Conservative party, of the Liberal Democrats-I am sorry to see that they are not present in great number on the Government Benches this morning, although I hope that they will be here before too long-the Scottish National party or Plaid Cymru. There are also many-they may well be the majority-who are members of no party at all. I therefore do not regard this issue as a particularly party political matter; rather, it concerns good industrial relations.
For 16 years I was an employer. I ran a small solicitor's practice, and in the end I was responsible, along with my partners, for employing 40-odd people, so I know quite a bit about employing people. I know a lot about keeping staff happy, and I know how important it is that there are good relations between an employer and
an employee. Members of the CAW wanted to work with their trade unions to help their employers be successful. It is rarely the case that an employer can be successful if their employees are withdrawing their labour. The result is invariably that the company and the employees both lose out, and in the long run that is of no great benefit to either.
In the 16 years that I was running the firm, we never had any problems with the unions. To be fair, there was no unionisation, but they were free- [ Interruption. ] I always said that if any of the staff wanted to join a union, they were entirely free to do so. However, without being too immodest, I like to think that the fact that there was no unionisation was perhaps because we tried to be good employers and because the staff did not feel it necessary to join a union. They were quite free to do so, but as far as I can recall, none of them ever decided to withdraw their labour.
Let me declare a further interest, in that my brother is a merchant seaman. As will become apparent later, when I consider some of the detailed provisions in the Bill, that is particularly relevant, as the Bill seeks to amend subsections (2A), (2B) and (2C) of section 230 of the Trade Union and Labour Relations (Consolidation) Act 1992.
Philip Davies (Shipley) (Con): Does my hon. Friend not think it strange that the Labour Government, who were in office for 13 years, made changes to the 1992 Act in 1999 and 2004, and yet on both occasions, when they were reviewing and amending the legislation, decided to leave those provisions intact? They thereby indicated that they thought that they were perfectly sensible. Now that Labour Members are in opposition, after 13 years of being in government, is it not bizarre that they seem to think that those provisions are no longer appropriate?
Mr Nuttall: My hon. Friend is quite right. I will have something to say on that later, although I should point out now that section 232B, entitled "Small accidental failures to be disregarded", which the Bill seeks to amend, was actually introduced by the Labour Government, through the Employment Relations Act 1999. We can therefore safely assume that this measure, which was not originally in the 1992 Act, was one that the Labour Government wanted included in that Act.
Subsections (2A), (2B) and (2C) of section 230 of the 1992 Act contain special provisions relating to the requirements that are applicable to merchant seamen-who have special requirements owing to the nature of their work-who are also members of a trade union.
I genuinely congratulate the hon. Member for Hayes and Harlington on his perseverance with this measure. On Thursday 23 November 2006, almost four years ago, he came 16th out of the 20 successful Members in the ballot in that Session. He then decided to introduce the Trade Union Rights and Freedoms Bill, which was part of a campaign being pursued by the unions following the Trades Union Congress of 2005, which had passed a motion calling for a trade union freedom Bill in the wake of the dispute between Gate Gourmet and its catering staff at Heathrow airport. Members will note a common thread involving Heathrow airport and airport matters. One of the principal provisions of the trade unions' motion was the simplification of the complex
regulations on notices and ballots, which restrict the ability of unions to organise industrial action when a clear majority of members have voted in support. I do not agree that the regulations are necessarily complex.
The hon. Gentleman introduced his Bill on 13 December 2006, and it was scheduled for Second Reading on 2 March 2007 but, unfortunately for him, there was insufficient time for it to be considered. It was not given a Second Reading and it subsequently fell. I should add that the introduction of that Bill was followed by early-day motion 532, which stated:
"That this House recognises that free and independent trade unions are a force for good in UK society around the world and are vital to democracy; welcomes the positive role modern unions play in providing protection for working people and winning fairness at work; notes the 1906 Trades Disputes Act granted unions the legal freedom to take industrial action; regrets that successive anti-union legislation has meant that trade union rights are now weaker than those introduced by the 1906 Trades Disputes Act"-
I do not know whether that was a critical attack on Labour's own 1999 and 2004 legislation. The motion went on to say that it
"therefore welcomes and supports the TUC campaign for a Trade Union Freedom Bill whose principles include better protection for workers, such as those sacked by Gate Gourmet in 2005, the simplification of ballot procedures and to allow limited supportive action, following a ballot, in specific circumstances; and therefore urges the Government to bring forward legislation to address these proposals."
The motion was moderately successful, unlike some that attract only-
Mr Speaker: Order. The hon. Gentleman has now been on his feet for 15 minutes. I understand that he wanted, very properly, to declare his interests, and a modest preamble in situations of this kind is understandable, but I must gently say to the hon. Gentleman, who is a new Member, that this is not an occasion for a general discourse on the merits or demerits of trade unions or for the discussion of the Trade Union Rights and Freedoms Bill, which is not before the House this morning. It is the occasion for a focus on the specific content of the Bill before the House, which contains two clauses. I feel sure that the hon. Gentleman will now deal with those matters and remain focused on them for the remainder of his speech.
Mr Nuttall: Thank you, Mr Speaker.
Mr Bone: Will my hon. Friend give way?
Mr Bone: I am genuinely undecided about how to vote today. I want to know whether the Bill has been introduced purely because of the ridiculous action that British Airways took, or whether there is a more general problem. I hope that this will come out in the debate. I do not think that we should make law based on one case, and I want to know whether there is a genuine problem.
Mr Nuttall: I thank my hon. Friend for his intervention, and I agree that this is important. I shall look at the case law shortly.
I shall turn to the detail of the Bill very shortly, Mr Speaker. The early-day motion was signed by 133 Members, including the previous Member for Bury North. The hon. Member for Hayes and Harlington is to be commended for his determination in bringing this Bill before us today.
The House must not take the Bill lightly. It contains just two clauses-one is substantive, the other deals with the short title and details of the commencement provisions-and there is a real danger that, because of its brevity, many Members might think that it is a trivial matter that can be disregarded. We should not take it lightly, however. There is a danger that, because its title contains the word "lawful" and, in parentheses, the words "minor errors", we could be lulled into a false sense of security. Those words might suggest that it is a trivial piece of legislation that will merely tidy up some long-forgotten legislation that contained one or two technical errors, but nothing could be further from the truth.
Andrew Bridgen (North West Leicestershire) (Con): Does my hon. Friend agree that the Bill is in fact a Trojan horse, out of which could spring lots of legislation that could lead to making the UK economy far less competitive, damaging industrial relations and the potential for growth in the economy in the difficult times ahead?
Mr Nuttall: My hon. Friend is absolutely right. There is a real danger that the Bill could be a Trojan horse. It could easily take us into new territory. It could also take us back to a previous era that many people outside the House thought they had seen the last of.
Philip Davies: My hon. Friend has a legal background, and I do not. The case being made by Labour Members seems to be that they do not think that judges should interpret the law, and that the law should be clear and straightforward. The Bill seems to be throwing us out of the frying pan into the fire, however, because it says that a judge has to accept a ballot if there has been "substantial compliance" with the provision in question. Can my hon. Friend tell me, in legal terms, whether there is a legal definition of "substantial compliance"? For example, would 51% compliance count as "substantial", or would it need to be 60% or 80%? Or are we going to go straight back to having judges deciding what is substantial and what is not?
Mr Nuttall: My hon. Friend is broadly right. The Bill seeks to move the law from a situation in which the courts are asked to consider whether something is a small, accidental failure that should be disregarded to one in which they consider whether there has been "substantial compliance" with the law. I will come to that point in a moment.
I was just saying that I do not think that we should be lulled into a false sense of security simply because the title of the Bill refers to "minor errors". The Bill is, I believe, worthy of comprehensive analysis and scrutiny if only because our constituents would rightly expect it. This Bill will not affect trade unionists alone; it will affect everybody and the lives of everybody affected will be blighted. One can only assume that the thrust of this proposed legislation is to make it easier for trade unions to organise strike action. That will affect-it will potentially
affect; it could affect-every family in this country. That is why I believe the Bill deserves somewhat more detailed scrutiny. I appreciate that I am a new Member, so I might gloss over or miss things that others with longer service might not. They will be better placed than me to give it the examination that I think the Bill deserves.
Philip Davies: My hon. Friend made a good point when he said that the Bill's title refers to "minor errors". I believe that the Network Rail v. RMT case was cited in support of this Bill, but does my hon. Friend agree that balloting people from 11 signal boxes that did not exist, some of which had been shut down 44 years ago and one of which, on the union's own admission, had burned down hardly constitutes a "minor error"?
Mr Nuttall: My hon. Friend is right. My concern is that if this legislation were allowed to proceed in this form, that sort of slipshod behaviour might be allowed to continue in future. I submit that one reason why a line of cases has been brought before the courts is that employers have upheld the will of this House and have sought to secure full compliance with what was originally intended. I stress again the importance of what was intended not by the 1992 Act but by the Employment Relations Act 1999, which was introduced by the Labour Government.
In his opening remarks, the hon. Member for Hayes and Harlington said-I agree with him-that we begin to understand the full effect of this proposal only by looking at the legal framework in which employees and employers operate. The starting point is the contract of employment itself. Under such a contract one individual, the employee, provides his or her services or labour for the benefit of another, the employer. In return, they are paid for the labour they provide. The work is manual labour in some cases or it could be "white collar" work, as we call it, or it could be providing expertise on a particular subject. It follows that withdrawal of that labour is a very serious matter and, unsurprisingly, the law attaches serious consequences if someone breaches that agreement, as it does with any other breach of contract,.
Henry Smith (Crawley) (Con): Is it not the case that elections are held by other legal entities, such as public limited companies or national organisations, and are sometimes used for trustees and so forth? With those other legal entities, is it not the case that complete compliance with the law is necessary, rather than "substantial compliance"-whatever that vague term means legally?
Mr Nuttall:
My hon. Friend is absolutely right. In most areas of the law, people are quite rightly expected to follow it to the letter. In the particular area of trade union law, the possibility of human error coming into the process is taken care of, I submit, by the provisions of section 232B of the 1992 Act, which specifically allows for minor, small, accidental failures to be completely "disregarded". That raises the question of why on earth this Bill is being introduced at all, particularly following the decision of the Court of Appeal in the British Airways plc v. Unite case earlier this year. I accept that it was only a majority judgment, but it was nevertheless
a judgment of the Court of Appeal, so it should be given time to bed down, as it put forward a fairly clear view of the law.
Andrew Bridgen: Can my hon. Friend think of any other aspect of the law where "substantial compliance" is considered sufficient?
Mr Nuttall: There are various areas of the law. We have a de minimis rule, for example, which covers cases where there has been a trivial or minor breach. The judges will often overlook such a trivial or minor error if it could be construed as complying with the de minimis exclusion for understandable human error.
Jacob Rees-Mogg (North East Somerset) (Con): I thank my hon. Friend for giving way so graciously and so often and for elucidating so many points in this debate. Does he agree that it is only right that trade unions be held to the highest standard of accuracy in holding these ballots, because they get a special exemption from the contract law to which their members would otherwise be subject? As they are getting an exemption under the law, should they not be required to do things absolutely properly? Perhaps the Bill should be amended to tighten the regulations rather than to loosen them.
Mr Nuttall: My hon. Friend is absolutely right. I was about to come on to the history of how we arrived at where we are today, albeit briefly as I do not want to go too far back. It is important to remember that a couple of hundred years ago it was completely illegal for workers to join together at all. We have now happily moved on, but there is perhaps a case for tightening trade union legislation, and I believe that a number of other matters could be more usefully included in the Bill. I assume that people in the trade union movement want to see it prosper, go forward and make itself ready for the 21st century.
Charlie Elphicke (Dover) (Con): Does my hon. Friend think that now is the time to be passing legislation to make it easier to strike, when we need to pull ourselves out of this massive recession the country has had to face, thanks to the shambolic economic policies of the Labour Government? At another time in the future, when the country is perhaps doing better-
Karl Turner (Kingston upon Hull East) (Lab): Absolute nonsense.
Charlie Elphicke: It is not nonsense; it is accurate. It was Labour Members who caused the recession and now they are trying to make it easier to strike. That is not a fiscally responsible thing to do.
Mr Nuttall: I thank my hon. Friend for that intervention, which highlights the real danger. He strikes to the heart of the matter, because as the nation tries to emerge from the recession, we need to do everything we can to put dynamism back into British business. The last thing that we want is a return to the dark days of the 1970s, and the problems of the 1980s, when the news headlines were dominated by industrial unrest and strife. If those days returned, the economic competitiveness of British business would be damaged, and that would be good neither for this country nor for trade unions in general.
Philip Davies: I want to drag my hon. Friend back to the point made by my hon. Friend the Member for North West Leicestershire (Andrew Bridgen) about the Bill's terminology of substantial compliance. Does he agree that it would be interesting if Labour Members accepted substantial compliance as the basis for legislation generally? For example, in the case of a major health and safety problem at work, would their presumption be that the employer should face no sanction if that employer had displayed substantial compliance throughout the rest of the year. Does my hon. Friend agree that the concept of substantial compliance might have merit after all?
Mr Nuttall: I am sure, Madam Deputy Speaker, that Mr Speaker is most upset that he has not been able to stay and listen to the rest of this interesting debate, but he will be able to read it later.
I thank my hon. Friend the Member for Shipley (Philip Davies), who raises an interesting question. The point was made earlier that the provision might be a Trojan horse. If we go down the path of referring to matters as substantially complied with, or saying that, taken together, there has been substantial compliance, there is a danger that it leaves open a gaping hole. What is not substantially compliant? What should we do if someone complies with their health and safety policy for 51 weeks, but not in the other week? Such an approach does not make sense. During detailed examination of clause 1(3), I shall consider whether the Bill takes us any further forward.
Andrew Bridgen: Does my hon. Friend agree that the problem is not just with substantial compliance some of the time, but with the fact that some groups will be allowed substantial compliance, whereas other groups will have to adhere to complete compliance all the time?
Mr Nuttall: My hon. Friend is right. I can well understand those who comply with the law for all of the time not being too happy about other groups being allowed to comply with the law for only part of the time. The rest of the time they can say, "Well, we have substantially complied with the law." What should we do with a burglar who said, "Well, I've been substantially compliant with the law for 364 days of the year, but today I happen to have fallen foul of the law"? Should we let him off? What absolute nonsense.
Any employee who breaches their contract of employment leaves themselves open to the risk of being found liable, under the law of tort, to their employer, for breach of contract. That applies whether the contract is for unskilled manual labour, skilled manual labour, or what is often termed white collar services. The liability applies equally to those organising industrial action, such as-but not necessarily exclusively-trade unions, because those concerned will seek to procure a breach of contract, which is a tort under English law. Under those circumstances, both individuals and trade unions risk incurring liability to the employer. I add that there is also a potential liability to third parties. In individual terms, the employee is also, of course, liable to be dismissed.
Only through the protection afforded by statute can employees and trade unions escape the consequences of their actions in withdrawing their labour and breaching
the terms of their contract of employment. That was first accepted, as the hon. Member for Hayes and Harlington mentioned, as long ago as 1906 when the Trade Disputes Act was passed. Prior to that, the common law provided that trade unions were liable to claims for damages for inducing a breach of contract. The 1906 Act granted them immunities from those liabilities. As I mentioned in response to my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg), 100 years earlier the Combination Acts of 1799 and 1800 made it illegal for workers to join together and press employers for shorter hours or increased pay. Those Acts remained on the statute book until 1824 when they were repealed, to be replaced by the Combination Act of 1825.
Philip Davies: Does my hon. Friend agree that when we consider what is fair and reasonable in such legislation, part of the equation that should be considered, and that appears to have been considered in cases such as British Airways v. Unite, is the impact of the strike action on the business and its customers? If, as in the case of Unite, there is an attempt to wreck Christmas holidays for over 12 days, which would have affected British Airways and its customers to a devastating extent, the highest possible standards must be expected of unions in such circumstances.
Madam Deputy Speaker (Dawn Primarolo): Order. May I gently remind the hon. Gentleman about the remarks made at the beginning of this debate about a new way of debating in the House? He has been speaking for nearly 40 minutes. If he has set the scene, I would be grateful if he now dealt with the details of the Bill.
Mr Nuttall: Thank you, Madam Deputy Speaker. I will indeed. If I may, I will deal briefly with the intervention made on me, and then bring us up to date and consider the detail of the Bill.
Madam Deputy Speaker: Order. I hear what the hon. Gentleman says. He has set the scene, so he can deal with the intervention. However, I then expect him to address his remarks to the Bill.
Mr Nuttall: Thank you, Madam Deputy Speaker. I will indeed.
My hon. Friend the Member for Shipley (Philip Davies) is right about the devastating effect of industrial action such as that to which he referred. In the case in question, it looks as though the action was specifically arranged and organised to hurt people who had waited all year for their holiday. Therefore, it is not surprising that the law drawn up in 1999 should expect the highest standards of compliance. In view of what you have said, Madam Deputy Speaker, I will skip over the next portion of my remarks. Let us jump forward to the late 1970s. I think that this is relevant, because that was the time when trade union powers reached what could be described as their zenith.
Andrew Bridgen: Does my hon. Friend agree that the fact that Bill seeks to send industrial relations between employees and employers back to the late 1970s should come as no surprise, given that the new Leader of the Opposition seeks to swing the politics of the Labour party back to that time, and that the great consolation for Conservative Members is that Labour will therefore be out of government for a very long time?
Ian Lavery (Wansbeck) (Lab): Absolute rubbish.
Let me also remind the hon. Member for Bury North (Mr Nuttall), before he rises to reply to his hon. Friend's intervention, that I have already told him very specifically that, having spoken for after 40 minutes, he should end his general remarks and begin to deal with the contents of the Bill. Before he replied to the earlier intervention, he assured me that he would do that, but he then broadened the debate. I should be grateful if, in replying to the intervention from the hon. Member for North West Leicestershire (Andrew Bridgen), he would refer directly to the Bill.
Mr Nuttall: I certainly will, Madam Deputy Speaker. To be fair, I think that I have already dealt with my hon. Friend's point. I agree that there is a danger that that will happen if the Bill is allowed to proceed in its current form. However, I think it relevant to point out briefly-very briefly, and for the good of the trade union movement-that trade union membership has halved since the 1980s, from 13 million to 6.5 million. I fear that if the Bill were allowed to proceed and a further period of industrial unrest were to follow, there could well be a further decline, perhaps-although it is not for me to say-a terminal decline in union membership.
Let me now do what you have rightly asked me to do, Madam Deputy Speaker, and turn to the detail of the Bill.
Charlie Elphicke: Given that the Court of Appeal reversed the injunction in the British Airways case, does my hon. Friend think that the Bill is necessary at all?
Mr Nuttall: No, I do not. We have not yet had time to see the details of the Court of Appeal's decision in the case of British Airways plc v. Unite. The court's judgment, which was quoted by the hon. Member for Hayes and Harlington, was quite clear in regard to the effectiveness of the law.
There has been such a long line of cases of this kind, and it is interesting to note that time and again they have involved the same union: Unite. One would think that by now Unite, and the people whom it employs to conduct the ballots, would have learned how to do it, but apparently not. The Master of the Rolls recognised that. Delivering his dissenting judgment in the Court of Appeal, he said that he agreed with Mr Justice McCombe, who had delivered the earlier judgment in the Queen's bench division. He said that he did
"not consider that the Union has a good prospect of establishing at trial that it complied with section 231. On the contrary, I would not regard its prospects as promising."
He reached the conclusion that
"the requirements of section 231 seem...at least as at present advised, to be unnecessarily prescriptive and strict, particularly insofar as they can be relied on by the employer and particularly in a case such as this... Having fallen foul of the technical rules of the 1992 Act in a ballot a few months earlier, the Union might have been expected to take particular care over complying with all those rules in what was effectively a rerun of that ballot."
So there we have it: the Master of the Rolls saying in terms that the union had had one chance, and had got it wrong. A few months later it did effectively the same thing, and got it wrong again. My hon. Friend the Member for Dover (Charlie Elphicke) is quite right.
Let me now return to the detail of clause 1, which seeks to amend section 232B of the Trade Union and Labour Relations (Consolidation) Act 1992. Subsection (2) would add the words "or notice". Previously compliance had been required only if a ballot had been held, but sections 226 to 230 require notice to be given to the employer as well. Section 226A requires the notice to be given
"not later than the seventh day before the opening day of the ballot",
"received by every person who it is reasonable for the union to believe"
In considering whether this is a sensible provision, I ask myself why notice should not be given to all the other people who would be affected. I would consider it sensible for the Bill to require it to be given not just to the employer, but to others who would be affected by the union's actions, such as post office and railway users' groups. Section 226 states that it would help the employer to be able to make plans and bring information to the attention of some of his employees, because other employees might be seriously affected if half their colleagues walked out on strike. It is entirely right that there should be compliance-full compliance-with the requirement for notice to be given.
Andrew Bridgen: Compliance with the notice period is essential because, as my hon. Friend has pointed out, there are suppliers downstream and users upstream of the business who need to be informed of potential industrial action.
Mr Nuttall: Indeed. The time is needed so that other people-not just other employees-can be notified. Deliveries may need to be stopped, and customers may be waiting for those deliveries.
There is a strong argument for increasing the notice period. Section 226A(1)(a) requires only seven days' notice, which is not very long. It will include a weekend, so there will be only five working days. That is not a long time in which to make all the necessary preparations, especially when the company involved has never experienced a strike before and does not know what to do. There will be a lot to be done in those seven days. There is a lot of merit in the argument that the period should be extended to 14 or 28 days, so that people know where they stand if a union starts to take industrial action.
Charlie Elphicke: My understanding-correct me if I am wrong-is that the substantial compliance provision would allow for exemption from section 234A of the 1992 Act, which deals with the notice to employers of industrial action. Does my hon. Friend think that substantial compliance might be a notice sent in the post but not delivered? Is that substantial compliance or not? Should not an employer receive actual notice and have some certainty about that?
Mr Nuttall:
My hon. Friend makes an interesting point, which we will look at in more detail when I look at the next paragraph of the subsection. The problem with the Bill is that it not only introduces the novel concept of substantial compliance, but extends the scope of the 1992 Act to cover not just the ballot but the
notice provision. Therefore, it is doing two things at the same time. Incidentally, the provision also extends the number of sections to which the exemption applies, which we will look at later.
May I move on to subsection (1)(b) of section 232B, which states that the failure will be disregarded if
"the failure is accidental and on a scale which is unlikely to affect the result of the ballot".
It seems that, when the 1992 Act was amended, the then Labour Government knew exactly what they were doing. They were providing for minor errors to be discounted. In section 232B, they specifically allowed for a failure which is
"accidental and on a scale which is unlikely to affect the result of the ballot or, as the case may be, the failures are accidental and taken together are on a scale which is unlikely to affect the result of the ballot".
That seems to be straightforward and simple to understand.
Philip Davies: It may be straightforward to someone as intelligent as my hon. Friend, but may I ask him to clarify the matter for those of us who do not have his intellectual capacity? Does the law as it stands say that the failure would be disregarded if it were, "accidental and does not affect the ballot" or does it say that it would be disregarded if it were "accidental or does not affect the ballot"? If the problem in the vote were not accidental, presumably it would not matter if it made any difference, because the union would have to meet both tests: the failure would have to be accidental and not make any difference. Can he clarify whether both tests have to be met at the moment?
Mr Nuttall: I thank my hon. Friend for that intervention. The position is more complex perhaps than I originally intimated. Section 232B(2)(b) says that, in relation to a ballot, if there is a failure or there are failures in respect of a provision mentioned in subsection (2) or other provisions, and the failure or failures are accidental and on a scale that is unlikely to affect the result of the ballot, those can be disregarded. It is worthy of note that the section already makes provision not just for a single failure but for failures, so it already provides for more than one failure. There could be several failures and the law accepts that at the moment. It accepts that there could be multiple failures and the existing legislation would still potentially allow those to be disregarded by the courts, as happened in the case that has been so often referred to this morning-the case of British Airways plc v. Unite. There were a number of errors. The Court of Appeal, by a majority, decided to allow the appeal and discharged the injunction that had been obtained at first instance by the court.
Andrew Bridgen: Does my hon. Friend agree that the Bill effectively will give special rights, privileges and concessions to unions that are not given to any other groups in this country?
Mr Nuttall: My hon. Friend is right. The concept that is introduced by the proposed amendment to section 232B of "substantial compliance" is a novel concept. I have not heard in the opening remarks in the debate about any other legislation where that is referred to, and therein lies quite a major problem with this legislation.
I turn to the crux of my argument.
Philip Davies: This appears to get down to the nitty-gritty of what is accidental. It seems to me from the judge's summing up that Unite got it wrong in its dispute with BA. The judge said that he thought that
"it therefore seems clear that the union was aware, or certainly ought to have been, that the figures provided to BA in the ballot notice included a substantial number of those who were shortly to leave on voluntary redundancy, and therefore included members who the union could not reasonably have believed would be entitled to vote in the ballot."
In that case, the mistakes might have been minor, according to the interpretation of the hon. Member for Hayes and Harlington (John McDonnell), but they certainly could not have been accidental if the union was balloting people whom the judge ruled it should have known, or did know, were not entitled to vote.
Mr Nuttall: My hon. Friend makes a valid point. One of the problems with the interpretation of the clause relates to what is accidental and what is not. I submit that we are going to have exactly the same problem if we change the law and introduce the concept of substantial compliance. We are not any further forward than we were.
Henry Smith: Does my hon. Friend think it in order that the House should legislate to allow for incompetence, whether accidental or deliberate?
Mr Nuttall: I thank my hon. Friend for his intervention. I certainly do not think that it is appropriate that the House should legislate for incompetence, and effectively that is what this Bill is leading towards. It is effectively saying that there could be 70%, 60% or 80% compliance with the law and that would be okay. I might be wrong, but I am of the opinion that members of the public outside this House rightly expect a trade union, or indeed, as my hon. Friend the Member for North West Leicestershire said, any other group, to comply with the law to a much higher degree.
I think the degree of compliance should be 98% or 99%, which was the intention in 1999 when the then Labour Government introduced section 232B providing for small accidental failure to be disregarded. The new provision refers to
"the failure...or the failures taken together",
so it mirrors the current situation in that duplicate failures would be permitted. It also states that
"there has been substantial compliance with the provision or provisions in question"
"on a scale which is unlikely to affect (in the case of a ballot) the result of the ballot or...a reasonable recipient's understanding of the effect of the notice".
The problem is that that provision takes us no further forward. Employers are just as likely to say, "Well, has there been substantial compliance or not?" It is not clear, so we are no better off than if we were to ask whether there had been a minor or accidental failure. Therefore, this provision will prove to be a treasure trove for lawyers.
Philip Davies: Given that the purpose of the Bill is to try to avoid any misunderstandings, does my hon. Friend agree that it would have been more helpful if the hon. Member for Hayes and Harlington had included a definition of substantial compliance? If he had, we might have avoided some of these problems.
Mr Nuttall: My hon. Friend is right. One of the defects of the Bill is that there is no definition of what constitutes substantial compliance under the law; we have no idea at all about that.
The current law is particularly detailed, however. For example, section 226A of the 1992 Act requires that a union must give notice
"not later than the seventh day before the opening day of the ballot"
"every person who it is reasonable for the union to believe (at the latest time when steps could be taken to comply with paragraph (a)) will be the employer of persons who will be entitled to vote in the ballot."
All sorts of questions arise, such as what happens if someone is set to become an employee but is not working on the day? They will never have a chance to vote; are they to be included or not? I do not want to address all these questions today. I simply put that one as an example of the problems that will arise if the Bill is enacted.
Henry Smith: Does my hon. Friend agree that that is precisely why the 1999 and 2004 legislation introduced by the previous Government-to whom I do not give credit for very much-did not allow for substantial compliance? The point my hon. Friend makes illustrates precisely why they saw the sense in not allowing for that.
Mr Nuttall: My hon. Friend hits the nail on the head. Back in 1999 there was a new Labour Government with a substantial parliamentary majority, and they could very easily have introduced a measure along the lines of the Bill, but they did not do so because it is a bit of a dog's breakfast. It is not clear what substantial compliance means; there is no definition in the Bill and our attention has not been drawn to any previous case law or to any academic analysis of what would or would not constitute substantial compliance.
Andrew Bridgen: Is not the crux of the matter that if substantial compliance had been fully defined in the Bill, that would merely move the legal argument on to the question of whether actions might or might not be likely to affect the ballot?
Mr Nuttall: My hon. Friend is right. Whether or not something may or not result in the ballot being affected is a very moot point indeed, and it could exercise the courts for a very long time.
I think there is a danger that the lawyers are sitting out there rubbing their hands with glee, because when they see the Bill they must think, "Marvellous! We've almost run our course in respect of the 1992 and 1999 legislation, which has been to the Court of Appeal, but we are now going to move back to square one and start again. We can spend hour after hour in the Queen's bench division and then the Court of Appeal." The issues will not be dealt with in, say, Uxbridge county court.
Philip Davies:
Returning to the point made by my hon. Friend the Member for Dover (Charlie Elphicke), is there not an irony here in that the hon. Member for Hayes and Harlington has introduced the Bill to benefit his friends in the trade unions and they have got a Court
of Appeal decision that is favourable to them that they could presumably use in further cases as case law, yet he wants to scrap that judgment, which eventually found in their favour, to introduce a new element to the law that is uncertain? If the hon. Gentleman wants to help his friends in the trade unions, should he not leave the law as it stands with this clear verdict from the Court of Appeal, rather than try to introduce a new Bill that introduces new uncertainty? He is not even helping the people his Bill is designed to help.
Mr Nuttall: Absolutely. My hon. Friend is right that there is a real danger that this Bill will not only move industrial relations back three decades, but will move the analysis of the case law back to square one-back to 1992 or 1999. We will be starting with a blank page, and the lawyers will be able to say, "Well, here we are. All past judgments are out of the window because there is now a new piece of legislation." All the previous cases that have been cited this morning will, effectively, be made redundant because the measure that has been tested before the courts on several occasions will no longer be on the statute book, and we will be faced with a new measure that has never been tested before the courts. It will not be long before an employer is required to put the matter to the courts for a decision and, as I said, these are not matters that could be dealt with in a county court. They would inevitably have to be dealt with in the High Court. They would then be appealed to the Court of Appeal for civil cases, and who knows whether they would go on to the Supreme Court. They would be lengthy and expensive actions, and I submit that we would be no further forward in having clarity in the law-which, after all, is why we are here in Parliament. We thought we had nearly got there in the case of British Airways v. Unite earlier in the year. If we now go back to square one, we will be no further forward.
Philip Davies: I am pleased my hon. Friend agrees with me about that. However, has not the hon. Member for Hayes and Harlington reasonably identified that the crux of the BA case is the definition of accidental? It was the judge's view that in this case accidental did not mean unintentional-that there was not enough to satisfy the demands of the law. If the hon. Gentleman wants to deal with the BA problem, to which he referred at length in his speech, would he not be better off just amending the law to give a definition of accidental, rather than going back to the drawing board and introducing a completely new concept altogether?
Mr Nuttall: My hon. Friend is right, because rather than deal with the matters raised in the judgment, such as the definition of "accidental", the Bill seeks to introduce a novel concept of whether there has been "substantial compliance" with something.
I shall now deal with the next subsection, if Madam Deputy Speaker will allow me. Subsection (5) deals with the burden of proof. The existing legislation under section 232B of the 1992 Act contains no subsection (5), so this would be a new insertion into the original provision. Subsection (5) states:
"In any proceedings in which reliance is placed on this section, any failure to comply with a provision mentioned in subsection (2) is to be treated as meeting the terms of subsection (1)(b) unless the contrary is proved."
In simple terms, that means that the burden of proof is being placed completely on the employer, who will have to prove this novel concept of what constitutes "substantial compliance". As has been said this morning, that arrangement is entirely the wrong way round. It is and has always been incumbent on the trade unions to show that they are complying with the requirements of the law, because it, unusually, exempts them from the liabilities that otherwise exist under British law.
Brandon Lewis (Great Yarmouth) (Con): Does my hon. Friend agree that the problem with having the onus on the companies and the employers is that that imposes a huge responsibility and potential cost on them in tough economic times, because they will have to try to prove something and get information to which they do not have easy access? That is why the onus in the Bill is completely the wrong way round and why the onus should remain on the unions.
Mr Nuttall: My hon. Friend is absolutely right about that point, although I had not thought of it, because employers face having to start delving into matters into which they will probably never have delved and that could be, as he says, a very expensive and time-consuming business. It would be far better for employers to get on and deal with the job that they are there to do, which is to try to run their businesses and companies profitably.
Subsection (5) deals with the burden of proof and makes it the job of the employer to prove that there has been a failure of "substantial compliance"; it puts the burden of proof on the employer. I submit that it is the job of the trade union to prove that it has complied with the rules. I sometimes refer to this as the 51:49 rule, because proving something on the civil standard of the balance of probability means that on a 51:49 balance it is more likely than not to have occurred. I believe that I am right in saying that we were told during the opening remarks of the hon. Member for Hayes and Harlington that proving this was not difficult, but if that is the case, it is not difficult for the trade unions to prove that they have substantially complied with whatever provision they are alleged not to have complied with. As we have said, what does or does not constitute substantial compliance is a matter of great debate. For example, has there been substantial compliance where a notice has been sent but not in the right form or where it has been partially or badly photocopied?
Charlie Elphicke: Will not the reversal of the burden of proof and the introduction of this wholly uncertain new test be very counter-productive, because we have such strong and well-understood case law and precedent in this area that this approach might damage the position of trade unions?
Mr Nuttall:
There is a real danger of that. One of the reasons why it would be wrong for us to pass this Bill in its current form is that it would damage the standing of the trade unions. There is a real risk that they will find it more difficult to recruit new members if they are seen to be moving back to the 1970s, and if there is such a return, there is a real risk that our economic competitiveness will be damaged. Before I deal with which groups might be affected by this measure-it is important that we examine that and consider who will be affected outside this House if the Bill is allowed to pass into law-I shall
address the requirements of subsection (5). Placing the burden of proof on the employer would be a major change and such a provision was not in the previous legislation. I have heard no good reason this morning why it would be a sensible way to proceed.
Clause 2, which deals with the short title of the Bill and commencement, is relatively uncontroversial. However, it might be suggested that the period of one month before the legislation comes into force is not sufficient. Clause 2(3) contains a fairly unusual provision. It states:
"This Act applies in relation to industrial action taking place (or proposed to take place) on or after the day on which it comes into force."
That leaves the definition of what "proposed to take place" means open to some doubt.
Jacob Rees-Mogg: Does my hon. Friend agree that the clause is particularly dangerous, because it allows errors that have been made, which may or may not have been considered to be substantial before, to be reconsidered after the fact? It is most unsuitable to legislate in that way, so the clause is one of the worst in the Bill.
Mr Nuttall: My hon. Friend is quite right. It is slipped in at the very end, in the last couple of lines of a clause that might otherwise be uncontroversial and remain unconsidered. I might have overlooked it, were it not for the fact that in parentheses, it says
"or proposed to take place".
That changes the whole ballpark of the meaning of the clause. One could understand if action were actually taking place-that would be quite understandable, and we can see whether someone is on strike or not-but where there is a requirement to consider whether it is proposed to take place, who makes the proposal? Is it someone who has proposed action in a branch meeting? Should it be proposed at a national level? Should there have been a ballot? Should there have been notification? How far down the line does it have to have gone before it is regarded as an proposed action? What happens if one union member has proposed it to his mate? Is that regarded as a proposal for action? The whole Bill is a minefield; it is a treasure trove for lawyers and I submit that in its current form it will do nothing to help trade unions and industrial relations in this country.
Before we go further, we should consider the groups that will be affected by this Bill. Principally, four groups will be affected. The first group is the trade union members. Some members might have their views excluded because, if one assumes that the thrust of the Bill is to make it easier for mistakes to be made-that is what we are talking about; we are making it easier for people to be missed out-there will be a greater likelihood that ordinary trade union members will not have their views taken into account. They will quite rightly ask why they are being denied a say, and they are certainly a group that we should have in the forefront of our minds when we are deliberating on which way we should vote on this Bill.
The second group is the trade union members who are consulted. Regardless of whether they are consulted in support of or against any particular proposed industrial action, there is a real danger that their hard-earned moneys, which are paid over as union subscriptions and union dues, will be wasted and lost in the pockets of the
lawyers and in payment of court fees while day after day is spent debating in the courts the merits and demerits of the Bill.
The third group is the employers. Where is the line to be drawn? The law already allows small accidental failures to be disregarded and it is reasonable to assume that the Bill is seeking to relax those provisions. It does prompt the question of what degree of error is now to be disregarded. I would ask the House to accept that as the current description is "small", the proposed disregard must by definition be a level higher than "small". The question is what degree of disregard is greater than "small". Is it, for example, "quite small", but not "small"? Is it "little", but not "small"? Is it "modest", but not "small"? Perhaps it is not "quite small", "little" or "modest", but in fact-I suspect that this is where the law is intended to go-quite a major failure. We are moving towards "substantial compliance" allowing for quite major failures of the law and allowing fairly major breaches of the law to be disregarded. That cannot be right.
Brandon Lewis: A couple of issues come to mind. Does my hon. Friend agree that as well as moving employers into a position where the onus would be on them, so they could be seen as aggravating the situation by doing research into any potential disregards, there is also the chance-as he has said-that although what is currently seen as being small is hard to define, if it is in law it has the ability to grow even once it has been refined? What we see as small in one case might become larger and larger as time goes on. The value of members who are unable to use their vote and are not given the opportunity because of an accident or mistake is devalued, rather like constituencies in which we have more people with less value to their vote.
Mr Nuttall: My hon. Friend makes a reasonable point. One difficulty in defining a small or minor error is the size of the electorate. Something that could be regarded as a small error that could be safely disregarded in one trade union would not be appropriate as a matter to be disregarded in another trade union. Even when a conclusion has been reached in proceedings that might at first sight result in apparent settlement of the law, that is not necessarily the case if the union involved is the size of Unite rather than the size of the garment workers' union, which might have nowhere near the same number of members. This is an important issue that will affect employers and the law will not be clear even after the Bill is passed.
Andrew Bridgen: Perhaps I could bring to my hon. Friend's attention another complication that might not have been considered of the possible implications of this Bill. If we move the burden of proof from the unions to the employers regarding substantial compliance with the provisions and the phrase
"on a scale...unlikely to affect",
does my hon. Friend agree that there could be a field day for the lawyers when employers, perhaps reasonably, claim that the unions have not complied fully by providing them with the information they need to decide whether there has been substantial compliance with the Bill or
whether any errors are on a scale unlikely to affect the Bill's provisions? Would that not therefore require further legislation to give employers the rights to obtain the information from the unions in a reasonable, timely and full fashion? That is yet another field day for the lawyers and, yet again, will fail to achieve the aims of the Bill.
Mr Nuttall: My hon. Friend is quite right. That is a point that I did not consider fully-I apologise for that-when going through clause 1(3). There is a risk that that subsection, taken together with subsection (5), will mean that the employer now has the problem-it will be a problem-of bringing before the courts evidence that there has been substantial compliance or non-compliance. All the evidence might well be in the hands of the trade unions, and it will be very difficult for an employer to be able to satisfy a court and, under this Bill, they would have that responsibility. Employers would have that burden placed on them. How on earth can they be expected to fulfil and meet that requirement when the information is in the hands of the trade unions? As my hon. Friend reasonably and rightly says, it would perhaps be more understandable for there to be a provision in the Bill to require the information that the court needed to be handed over so that there could be no doubt that there was a full requirement for the trade unions to hand over to the employer all the relevant information to enable the employer to submit an action to the court. Without that information, the employer would have no reasonable basis on which to instruct their solicitor, and there would be no way for a solicitor to instruct counsel, because they would not have the facts and figures to enable them to make their case.
Charlie Elphicke: My hon. Friend is making a technical and detailed speech, but do I understand his case correctly? Is it that the Bill will create uncertainty for trade unions and employers, and that it will benefit lawyers and result in a massive wodge of cash for them? That is just what happened when the previous Government handed over all coal compensation cases to a bunch of lawyers. Surely that is unacceptable.
Mr Nuttall: My hon. Friend makes a good, reasonable point. The law would not be clarified in any way by the Bill, but there is a real danger, as I have pointed out, that it would take us back to the situation we faced in the 1970s and 1980s. Much of the case law would be made redundant, and we would face yet more legal actions-
Madam Deputy Speaker: I know that the hon. Gentleman wants to make a number of points on the Bill, but he is repeating himself; he has come back to those points on a number of occasions. Perhaps he could carry on with the rest of his comments, rather than telling the hon. Member for Dover (Charlie Elphicke) what he has already said.
Mr Nuttall: I will indeed. I was just dealing with the intervention.
Philip Davies:
Although my hon. Friend the Member for Dover is right, the category of person that appears to be in danger of being ignored in this debate is not the trade unions or employers but the paying public-the
customers. At the end of the day, it is they who are most inconvenienced by all the strike action. Does my hon. Friend the Member for Bury North (Mr Nuttall) accept that if the Bill were to have a Second Reading today, it is not the impact on trade unions or employers that should be at the forefront of our mind, important though that is, but the impact on the customer and the paying public?
Mr Nuttall: My hon. Friend is quite right. He has perhaps anticipated my fourth point. I was about to say that fourthly, and perhaps most importantly, there is the question of the paying public, who would be the ones most affected by the changes. I am concerned that if the law is changed, we will see a return to the dark days of the 1970s. I am concerned for my constituents in Bury North-for the working mum who is forced to make last-minute arrangements for child care because teachers have gone on strike; for the small business man who is waiting for a customer's cheque to arrive, and who faces the ruin of his business because the postmen have gone on strike; for the taxi driver who needs to renew his licence, and faces the loss of his livelihood because he is preventing from renewing it because the officials in the town hall are on strike. I could go on and on; there are so many categories affected. Earlier, we touched on the family who save for, and look forward all year to, the one holiday that they have, and who are then denied the opportunity to go because one small group of workers has withdrawn its labour and gone on strike.
The law as it stands cannot be that difficult to comply with. The 2009 "Annual Abstract of Statistics" issued by the Office for National Statistics has details of how many working days were lost through labour disputes by industry in 2009. It shows that in transport, storage and communications, 657,000 working days were lost. In public administration and defence, 325,000 working days were lost. The figure was 31,000 in education; 16,000 in manufacturing; 5,000 in health and social work; 4,000 in other community, social and personal services; 2,000 in construction; and 2,000 in other industries and services. So it is not impossible to comply with the law as it stands. All those industrial disputes were able to proceed, quite lawfully, under current legislation.
Let me conclude by saying that the Bill risks taking the trade union movement back to the 1970s and '80s. I submit that it represents a huge missed opportunity to modernise the trade union movement. It tries to simplify existing legislation, but it runs the risk of creating new uncertainties. It introduces the concept of "substantial compliance"; and, as I say, lawyers must be rubbing their hands with glee at the thought of spending more time in court. Those words would have to be tested in the courts, because we know nothing of what they actually mean.
The Bill does nothing about the underlying problem that it seeks to solve. It does nothing to help the trade unions, or those engaged by them, to conduct the ballot in accordance with the letter of the law. After all, the issue is the will of Parliament and ultimately, therefore, the will of the people. The level of compliance is set where it is because that is where the public want it to be. For the sake of hard-working families who fear having their everyday lives disrupted by a return to the disastrous days of some three decades ago, we should not allow the Bill to proceed.
Having considered the merits and principles of the Bill, I am not persuaded that it is a sensible way forward. I am not convinced that the changes it seeks to make would, in any way, shape or form, improve on the existing law. Indeed, I would respectfully submit that the provisions would introduce a whole new area of uncertainty into trade union law, and that would be bad not just for the trade unions and employers, but for our economy. In short, it would be bad for Britain. For all those reasons, I propose voting against the Bill, and I urge the whole House to do likewise.
11.38 am
Nia Griffith (Llanelli) (Lab): I congratulate my hon. Friend the Member for Hayes and Harlington (John McDonnell) on securing this debate on his Bill. He is renowned for his determination in campaigning on issues such as the one that we are discussing.
The overwhelming majority of employers, as well as trade union leaders and their members, working in a wide range of contexts and within different structures, recognise that good employer-employee relations are crucial in an increasingly competitive world. They recognise the importance of good communications and clarity in respect of negotiating structures. They recognise the need to exercise responsibility and show restraint. Indeed, during the economic downturn, trade unions and employers have made some very difficult and responsible decisions; employees have accepted pay freezes or agreed to work fewer hours, with a subsequent drop in take-home pay, to avoid redundancies and keep their companies in business.
On a more optimistic note, only last week we heard a very good news story: Jaguar Land Rover and the trade unions reached a landmark deal which will mean a multi-million pound investment in the Jaguar Land Rover business here in the UK, securing the future of the three plants at Castle Bromwich, Solihull and Halewood, creating 5,000 new jobs and safeguarding up to 50,000 jobs in the supply chain, including jobs in my constituency, Llanelli, where there is a ThyssenKrupp Tallent plant that supplies components to Jaguar Land Rover. This would not have been possible without the brave leadership of Unite, leading a ground-breaking change and flexibility agreement.
Indeed, day and day out, behind the scenes and away from the glare of publicity, trade union leaders and employers negotiate and reach agreement. They see industrial action as the last resort. They understand the importance of a properly conducted ballot in enabling employees to express their views before taking strike action.
The Opposition recognise the importance of legislation in providing a proper framework in which to work, and during our time in office we introduced several measures to improve rights at work and to help to provide security at work. On trade union protection, that means that every worker now has the right to be a member of a trade union and to be represented in grievance and disciplinary hearings. It means that if a majority of workers in a workplace want it, employers have to recognise a trade union. More than 1,000 new trade union recognition deals have been signed since 1999. We also improved protection against unfair dismissal, with protection now kicking in after 12 months in a job instead of two years, and the maximum compensation has risen from £12,000 to £66,200.
The Opposition are committed to ensuring that trade unions operate within a strong legal framework. That means ensuring that strikes cannot take place without a properly conducted ballot, but the way in which the law has developed in recent cases is undermining the intention of the 1992 Act. In recent years, employers have successfully challenged ballots, not because there was any doubt about the view of the majority of those balloted, but because of minor technical non-compliance that had no impact on the result. It has created a lawyers' charter, with the main beneficiaries being lawyers. It has encouraged employers to seek legal loopholes rather than get on with the real business of negotiating. The current situation is unsatisfactory and is undermining confidence in the law among trade union members. If trade unionists believe that the law is being used wrongly to stop lawful and democratically agreed activity, it is likely to lead to very considerable frustration and to encourage unofficial action, actions organised over the internet, and wild-cat strikes outside the law and outside democracy. That will help nobody.
In the recent BA dispute, one judge pointed out that the purpose of the legislation
"is not to create a series of traps or hurdles for the union to negotiate",
"to ensure a fair, open and democratic ballot."
The Appeal Court overturned an injunction that had been granted to the employer on the grounds that the requirements for strike ballots had been interpreted too narrowly. There is a clear need to restore the original intention of the 1992 Act, together with a minor extension to the original legislation to cover the sections relevant to the requirement to give notice to an employer before a ballot is held and to give notice before industrial action commences. This Bill provides an important opportunity for Parliament to consider these issues.
There may be more than one way to achieve the Bill's objective. Although the Opposition recognise the need to restore the original intention of the 1992 Act, we cannot today endorse the particular legal mechanism proposed in this Bill. It would reverse the onus of responsibility to prove that the ballot would not have affected the result by placing the onus on the employer. I am very clear that an alternative would be to ensure that trade unions could establish clearly that minor errors that would not have affected the outcome of the ballot would not be the basis for legal action.
Although I am grateful to my hon. Friend for providing the opportunity for Parliament to debate this issue, further careful consideration should be given to the best way forward. It is of course the Government who must take responsibility for participating fully in-indeed leading-this debate. The law that both sides defend today was introduced by a Conservative Government. It is that law, working properly, that should be at the heart of the law governing lawful strikes. The Government must share the desire to ensure that we do not see any growth of illegal, undemocratic or unofficial strike action. I hope the Minister will indicate the Government's willingness to respond positively to the issues raised today. Today we are discussing a private Member's Bill, and it should be in the hands of the House to decide whether it should make progress.
11.45 am
Charlie Elphicke (Dover) (Con): It is not my intention to speak at great length or to filibuster the Bill, but it does need legislative scrutiny. I take issue with the hon. Member for Hayes and Harlington (John McDonnell) who suggests that any desire to scrutinise, examine or otherwise consider this Bill is somehow reprehensible or wrong. After all, the Opposition spend most of their time doing that to Bills, and when we put pressure on them they roundly criticise us for not allowing proper scrutiny. It is right that this House should scrutinise Bills.
The new intake may be new, but we are not naive. We have been sent here to scrutinise legislation and to clean up politics. For many of us in the new intake, the behaviour of previous Parliaments and the disgraceful abuse of expenses were unacceptable, inappropriate and wrong. The disrespect to this House-including its symbols-by Members of the previous Parliament was inexcusable, inappropriate and wrong. To bring before this House a private Member's Bill that is obviously controversial and highly partisan in nature is an outrageous and disgraceful thing to do. This day should be for legislation that will pass with the support of both sides of the House. It is wholly wrong and inappropriate to waste the time of this House by bringing before it legislation that will divide it. There are other issues that we could have been discussing today on which the House is united and agreed. I say to the hon. Gentleman that it is inappropriate, inexcusable and wholly wrong to do this to this House and the other Members who have legislation to be considered today. We could have been passing useful law today, but I do not think that that will happen. We could have been talking about matters that unite us, but for which there is too little parliamentary time.
I especially condemn the hon. Gentleman because not only does his Bill lack support on this side of the House, but-as we have just heard from the hon. Member for Llanelli (Nia Griffith)-it lacks support on his side of the House.
Mr Nuttall: That point is important. When I made my brief comments, I was not aware of Opposition Front Benchers' stance, but I am not surprised because the Labour Government introduced the provisions in 1999 and therefore it is to be expected that Labour Front Benchers will stand by what they said. The provisions have stood the test of time and no one has sought to change them before now.
Charlie Elphicke: I agree with my hon. Friend, who makes a powerful point. The Bill is highly technical and seeks to change things that seem technical, but it has the support of no major party in the House. The Bill is also highly controversial in that it seeks to extend the right to strike, but in reality would extend only uncertainty and the getting of money by our legal friends-I used to be one, I regret to confess. We should not proceed in that way.
As a member of the new intake, I was driven to be here today at the request of several constituents, who wrote to me. One letter stated:
"John McDonnell's Lawful Industrial Action (Minor Errors) Bill will have its Second Reading in the House of Commons on 22 October and I urge you to attend Parliament to ensure this takes place.
The Bill has been introduced in response to a raft of recent cases where courts have ruled"
as we have heard, and I will revert to that shortly. The letter goes on:
"These cases have meant British law now imposes fetters on unions in relation to ballots which are unprecedented in Europe".
That piqued my interest. I thought that I had to respond to my constituent because, unlike Members of Parliament in former times, I believe in writing back to my constituents and taking an interest in that in which they wish me to take an interest. I am nothing if not a servant of my constituents.
I therefore read the Bill and the explanatory notes. Paragraph 6 of the explanatory notes, which, I believe, the hon. Member for Hayes and Harlington wrote, states:
"A number of recent judicial decisions have revealed a degree of uncertainty on the scope and application of section 232B-for example, in the meaning of 'accidental' in subsection (1)(b). The cases have also highlighted, among other things, that the section does not apply to errors, however minor, in the giving of notice under section 226A or 234A. It remains unclear where the burden of proof lies in the event of a dispute as to whether an error involves loss of the protection of section 219."
Yet, as we have heard in the debate, the Bill creates a new uncertainty. Those provisions of trade union law have been in place for the past two decades and more, and they are well understood by the courts and the legal system.
Will introducing the new test of "substantial compliance" help the unions? I do not think so. It will help create uncertainty and it will help lawyers, but it will not help the trade unions. I say that as someone who is broadly a supporter of trade unions and their legitimate right to use their economic power to withdraw their labour if that is the collective democratic will. As a supporter in principle of the right to strike, I think that the Bill is wrong because it creates a new uncertainty where certainty had been garnered over time. As a supporter of trade unions, I think that the measure's aim is wrongful; as a supporter of employers, I do not believe that their time should be taken up in instructing lawyers and coping with new uncertainty. They need some certainly for their business planning.
Is the Bill necessary? Paragraph 7 of the explanatory notes states:
"In May 2010 an interim injunction was granted by McCombe J in British Airways plc v. UNITE the Union on the basis of alleged failure to comply with the provisions of section 231 of the 1992 Act regarding information about the result of a ballot. The Court of Appeal... reversed that decision."
It threw out the injunction. The explanatory notes continue:
"Smith LJ stated that 'it appears to me very likely that the judge at trial would hold that there had been substantial compliance'".
The explanatory notes cite a case as the mischief that necessitated the Bill, when it actually proves the opposite. Paragraph 7 goes on to say that in paragraph 149 of the judgment, Lord Justice Smith
"observed: 'I consider that the policy of this part of the Act is not to create a series of traps or hurdles for the Union to negotiate. It is to ensure fair dealing between employer and Union and to ensure a fair, open and democratic ballot'... However, the other two members of the Court reached their decision on different grounds."
The hon. Gentleman's case is that a mysterious uncertainty remains over the effect of insubstantial errors on the operation of the ballot and notice provisions, but I think there is no such uncertainty. It seems to me that the Court of Appeal ruled fairly and squarely in favour of discharging that injunction. The mischief cited as a reason for introducing the Bill seems, when one gives it close examination and reads it with some degree of care, not to be a mischief at all.
Jacob Rees-Mogg: I would be extremely grateful if my hon. Friend, as a lawyer, explained to us whether the Court of Appeal's decision is precedent-setting for future judgments.
Charlie Elphicke: My hon. Friend is absolutely right. Court of Appeal decisions, by our system of precedent, bind future decisions of that court and all lower courts. As I am sure he knows, only the Supreme Court can change and overrule a precedent. That is highly unlikely, and highly unusual in cases such as BA v. Unite.
Mr Nuttall: One real danger of the Bill is that the current set of established legal precedents would effectively become worthless. We would be back to square one, because new section 232B of the Trade Union and Labour Relations (Consolidation) Act 1992 has not been considered by the courts.
Charlie Elphicke: I completely agree with my hon. Friend, who makes a strong, powerful point. The situation is that the hon. Member for Hayes and Harlington alleges an uncertainty that seems not to exist.
The Bill would seem on the one hand to reverse the burden of proof, and on the other to introduce a concept of substantial compliance that creates even more uncertainty. As a former lawyer, I know that the concept "substantial" is relatively well understood: it normally means 80:20. However, substantial compliance in the context of the Bill creates a further question. What is 80:20 in terms of compliance?
Mr Nuttall: Is my hon. Friend suggesting that 20% of members need not be consulted? Would that be regarded as substantial compliance under the Bill? That would be outrageous.
Charlie Elphicke: My hon. Friend makes a good point. What does substantial compliance mean? I am not sure. The hon. Member for Hayes and Harlington really should have drafted the Bill properly to include a proper definition of substantial compliance. That might at least have earned Labour party support, if not necessarily Conservative support. If before laying the Bill without any discussion he had worked with the Government, it might have been less controversial. He could have worked with his own party to produce something that could achieve the kind of consensus that there should be for private Members' Bills.
Andrew Bridgen: The salient point is on substantial compliance. Imagine if in canvassing our constituents we were to "substantially comply" with a ballot by delivering papers only to the 80% of people we thought likely to vote in the direction we wanted. Would that be substantial compliance or democracy?
Charlie Elphicke: My hon. Friend asks a fair question. Would it be okay to have substantial compliance in electoral law? I have received letters from the Electoral Commission threatening all manner of prosecution if I do not comply completely with absolutely everything. Should politicians and campaigners only "substantially comply"? Must an employer substantially comply when it comes to dismissing a member of staff? I do not think so. That is not how employment law works. The rules on compliance are strict, and rightly so.
Jacob Rees-Mogg: It is extremely generous of my hon. Friend to give way once again. The concept of substantial compliance is desperately worrying, because if in a Division of the House we had had only to be substantially compliant on an 80:20 basis, the result could almost always be reversed.
Charlie Elphicke: I thank my hon. Friend. He makes a fair point. There are many cases in which there should be full and proper compliance-for instance, in an investigation by an employer into staff misconduct. An employer seeking to dismiss a member of staff should comply fully with all the procedures under employment law and employment practices, and likewise a trade union wanting to strike should be fully compliant with the procedures for all the notifications and other regulations that go with it. That is the right way to do things. It is not good enough to say, "Employers' behaviour has to be perfect"-and politicians nowadays, we learn belatedly, have to be perfect, or at least try to do the right thing most of the time-"but it is okay for trade unions broadly to do what they like and not to comply with anything." That seems to be the thrust of the argument put by the hon. Member for Hayes and Harlington.
To return to my central point, the hon. Gentleman knows that his argument will never have the support of Government Members. He might one day garner the support of the Labour party, but it will never have our support. I enjoin him to reconsider whether he really wants to put this Bill to the House, given that there are so many uncontroversial Bills that we could, and should, be discussing and putting to the House on which there is broad agreement. He should withdraw it on the grounds that it is wholly inappropriate for a controversial private Member's Bill to be put to the House in this way, killing a whole load of other business. He knows that we have no option or choice, because of our philosophy and viewpoint, other than to oppose the Bill. Even the Labour party leadership takes the view that the Bill should not be supported. I therefore invite him to consider withdrawing the Bill.
12.1 pm
Philip Davies (Shipley) (Con): It is a pleasure to participate in the debate. I congratulate the hon. Member for Hayes and Harlington (John McDonnell) on getting off the blocks more quickly than anybody else and having his private Member's Bill debated on the first available day. I am probably slightly more generous than my hon. Friend the Member for Dover (Charlie Elphicke) in that, even though I do not agree with the Bill, I think that the hon. Gentleman is perfectly entitled to introduce legislation that he feels is important to him and his constituents. However, I share my hon. Friend's frustration that that means that more worthwhile private Members' Bills could be sidelined today. That is extremely unfortunate.
I would say in passing, Madam Deputy Speaker, that although it is good to see you in the Chair, it was a great pleasure to see Mr Speaker in the Chair for the start of the debate. Recently, it had got to the stage when the Speaker was rarely seen on a Friday for private Members' Bills, but his appearance today shows how important such Bills are to Parliament. I hope that you, Madam Deputy Speaker, will pass on my thanks to him for giving Fridays the respect they deserve by attending the start of the debate.
I was disappointed that the hon. Member for Hayes and Harlington and his hon. Friend on the Front Bench, the hon. Member for Llanelli (Nia Griffith), decided to take a novel approach to debates in the House by not wanting to take interventions. The House of Commons is not a lecture theatre but a debating chamber, and often during debates and through interventions we can tease out the strengths and weaknesses of legislation. I hope, therefore, that that trend will not be repeated in future weeks and debates on private Members' Bills. I found the opportunity to intervene, and the reply given was actually quite informative, so I say to the hon. Lady that taking interventions in a debate is to be commended, because it allows us to tease out the issues.
Mr Nuttall: Had interventions been taken, we might have got on a lot more quickly this morning, because we could have got answers to some of the questions I raised. Instead, we were left hanging in the air. Had the hon. Member for Hayes and Harlington (John McDonnell) taken one or two interventions, we would not be in this position, because he would have been able to deal with those matters straight away.
Philip Davies: I tend to agree with my hon. Friend. As it happens, I am a fan of the hon. Member for Hayes and Harlington, who is a great parliamentarian. However, it was rather uncharacteristic of him to make it abundantly clear at the start of his speech that he did not want to take any interventions. My hon. Friend pointed out that he had not provided a definition of substantial compliance in the Bill, which made it all the more unfortunate that the hon. Gentleman started by saying that he did not want to take any interventions, and woe betide anyone who tried to intervene-that was the gist of his starting point-because otherwise we might have been able to ask him what he thought substantial compliance meant. That might have shed some light on the matter.
Andrew Bridgen: Is not the reason why the hon. Member for Hayes and Harlington (John McDonnell) did not take any interventions in his opening statement that he did not have any answers to the interventions that were coming? As we have shown today, this Bill has more holes in it than a Swiss cheese.
Philip Davies: There may be an element of truth in what my hon. Friend says. The hon. Member for Hayes and Harlington tried to describe the Bill as a simple and non-contentious piece of legislation that, really, nobody could possibly quibble with, and it was helpful to him in presenting that case not to take any interventions, so that none of the flaws in the Bill could be exploited.
Nick de Bois (Enfield North) (Con): Perhaps the hon. Member for Hayes and Harlington (John McDonnell) regarded his view-and his view alone-as substantive and sufficient grounds to go along with the Bill. I think we have demonstrated that that is not necessarily so wise.
Philip Davies: My hon. Friend is right. One of the things that I have learned in my short time in Parliament is that those on the Labour Benches tend to be very intolerant of anybody who holds a different opinion from theirs. I do not think that is particularly sensible in a parliamentary democracy.
It is a great pleasure to follow my hon. Friends the Members for Dover and for Bury North (Mr Nuttall), who both made tremendous contributions to this debate. I particularly want to commend my hon. Friend the Member for Bury North on his bravura performance in filleting the Bill and pointing out its many flaws, which hon. Members on both sides of the House were perhaps not aware of until he made his contribution. When I was first elected to this place, my mentor in Parliament was the late, great Eric Forth, the former Member for Bromley and Chislehurst. It is fair to say that he will be smiling down on us after the performance that my hon. Friend has given today, in the knowledge that his memory lives on in another guise. My hon. Friend should be extremely proud of the contribution that he has made to this debate.
As it happens, I perfectly understand the frustration felt by the hon. Member for Hayes and Harlington and his motivation for bringing the Bill forward. On the face of it, I understand why some trade unionists in the cases that he identified-he quoted a couple of cases that were illuminating, and I want to touch on that later-felt that although a substantial majority were in favour of strike action, they had been thwarted by their employers through the courts on a technicality. His Bill is an attempt to deal with that problem, and I certainly understand his motivation. However, I think that he is misguided, for a number of reasons, and I want to explain why.
I want to start by simply looking at the Bill from the hon. Gentleman's perspective of wanting to do the best for his friends in the trade unions, by trying to enable them to pursue strike action more readily when they feel that it is in their interests to do so. The first reason is the one that my hon. Friends the Members for Dover and for Bury North both mentioned, which is the fact that we are now getting some clarity in the original law. Given that the hon. Gentleman has received a favourable verdict from the Court of Appeal, it seems bizarre that he should want to rip up the law that delivered that favourable judgment and start all over again. I hope that, when he sums up the debate, he will explain why he does not accept the favourable judgment of the Court of Appeal, and why he wants to start all over again, with all the uncertainty that that brings. I cannot see any logical reason for doing that. Perhaps his decision to introduce this private Member's Bill was made before the Court of Appeal's verdict, in which case perhaps he might wish to reflect on whether it is now surplus to his requirements.
I do not believe that the Bill addresses the frustrations of the trade unions. The problem in some previous cases has been the wording of the law, and its interpretation, but the law does not need to be completely ripped up. It simply needs clarification or very minor tweaking. My hon. Friend the Member for Bury North pointed out that the current legislation requires unions to provide employers with notice of ballots on industrial action, and to provide exact numbers, workplaces and categories of those to be balloted and their addresses. It also states that any errors must be
"accidental and taken together are on a scale which is unlikely to affect the result of the ballot".
As we have rather helpfully teased out in the debate, the existing law does not state that the errors should be accidental or on a scale unlikely to affect the result of the ballot. I think that this is the point that the hon. Member for Hayes and Harlington was trying to make. He and the unions seem not to like the fact that the existing legislation provides for the fact that the errors must also be accidental. All the focus has been on the fact that mistakes were on a scale unlikely to affect the result of the ballot and that the strike action should have been allowed to continue on that basis alone. He did not seem to like the fact that court was also including the test of whether the mistakes were accidental, as the law currently requires. We can argue about whether that is a good idea, but I suggest that he would be far better off simply making a small amendment to the existing law, replacing the word "and" with the word "or". That would appear to solve his problem.
I do not particularly agree that we should change the law in that way, because I believe that the current provision is a good one, but from the hon. Gentleman's perspective, he needs only to make a very small change to deliver what he and his trade union want. It would be much more sensible and simple for him to go down that route.
Charlie Elphicke: Picking up on that point, I would not want the House to think that I intended any personal disrespect to the hon. Member for Hayes and Harlington (John McDonnell), who has brought the Bill to the House with the noblest of intentions. My frustration, as a new Member, is that we might lose the rest of today's business because we cannot vote against this measure in the way that should be possible. I put it to my hon. Friend the Member for Shipley (Philip Davies) that the previous Government did not always listen to the hon. Member for Hayes and Harlington or give him the respect that he deserves, and I hope that the new Government will listen to his proposals in greater detail, and not simply knock them out of court, so that they can be adopted and bring new clarity and certainty to trade union law.
Philip Davies: I am grateful to my hon. Friend for his intervention. Anyone who knows him will know that he would never intend any discourtesy to anyone, and I had certainly taken that as read, but I am sure that the hon. Member for Hayes and Harlington will be grateful to him for that clarification. My hon. Friend certainly did not need to explain that to me, however; knowing him as I do, I know that he would never be discourteous to anyone on either side of the House.
There are simpler ways for the hon. Member for Hayes and Harlington to pursue his campaign, although I would not necessarily endorse them. Part of the hon. Gentleman's frustration is not to do with the law as it stands. How could it be? As we have explored, the Court of Appeal agreed with his particular standpoint. He cannot therefore have any quibble with the law as it stands. I think the hon. Gentleman's real quibble is with judges who grant injunctions and the basis on which they do so.
The hon. Member for Hayes and Harlington certainly needs no advice from me-neither does anybody else for that matter-and I am sure that he will not take it, but I am certainly prepared to give it to him free of charge. My suggestion is that he start a campaign
around the whole issue of judicial injunctions. What tends to happen when people seek an injunction from a judge-not just in this case, but in other cases, and we often see it in libel or privacy law-is that everything happens very quickly. That is why people seek an injunction-because something is about to happen very quickly. It might be a strike action within a day or two, or a story being printed in a newspaper that is going to have very damaging effects on somebody's reputation. That is why an injunction is sought at very short notice.
On what basis should a judge be able to grant an injunction? That is the issue. Let me deal with what happens when people seek injunctions. I feel rather nervous about making these points when I am surrounded by so many esteemed people from the legal profession. As a non-lawyer, however, let me clarify my observation of what happens. Because something is going to happen that could have a devastating effect-on a business, on customers or on somebody's reputation-judges are, in effect, risk-averse. If something is about to happen-an article to be published, a strike to take place-and there is some uncertainty over the law, a judge cannot go back and change the law to stop it happening. What judges quite understandably do is to take a risk-averse view. They feel that the law might need some clarification and it is not entirely clear whether something is legal or illegal, so they adopt the risk-averse option of granting an injunction on the basis that a court can overturn the injunction later. If an injunction is not granted, something cannot be stopped from happening after it has happened. That is why I think the hon. Gentleman might want to pursue the whole area of injunctions and the level of proof or certainty judges need before they can grant them. I believe that that would help his side of the argument; it would certainly be more helpful than promoting this Bill.
Mr Nuttall: Let me explain why my hon. Friend's point is a good one. When asked to grant an interlocutory injunction, the courts will by definition have to act very quickly, as he says. They do not have the time to consider all the evidence in detail, so if there is a prima facie case to grant an injunction, they will grant it-without looking into the merits of the case. My hon. Friend is quite right about that. This is perhaps the root cause of the Bill and the real concern that it addresses.
Philip Davies: I am sure that my hon. Friend is right. He got rather technical during the course of that intervention, at which point it went beyond my capabilities. The bit that I understood, however, I certainly agreed with. Knowing my hon. Friend as I do, I am sure that I would have agreed with the bits that I did not understand. I therefore commend whatever my hon. Friend said to the hon. Member for Hayes and Harlington who, having a greater intellectual capacity than me, will have understood everything that my hon. Friend said.
Charlie Elphicke: One oddity about injunctions is their application to Members of Parliament. They are very hard to enforce, given the freedom from civil arrest that we enjoy. Does my hon. Friend agree?
Philip Davies:
I am being tempted by people who are more expert in the law than I am to comment on matters that they know far more about than I do. My
hon. Friends can take it as read that I agree with them on any matter with regard to the law, because they are in a far better position to argue their case than I would be.
I am still warming to my theme of how the intentions of the hon. Member for Hayes and Harlington can better be advanced. His supporters in the trade union movement also take exception to the definition in legislation of "accidental". We can all probably accept the definition of making a difference to the result. If a certain number of ballot papers were affected, all of which voted one way, but the result would not have changed, the wording in the current law of,
"on a scale unlikely to affect the result of the ballot"
is perfectly clear. From that starts the frustration.
The issue is the "accidental" point. If the hon. Gentleman attacked that problem, as he sees it, by instilling some definition of "accidental" in the Bill, his supporters might find that a more fruitful way forward. In the case of BA, which he quoted most during his speech, the judge, summing up his ruling to grant an injunction, said:
"I do not consider that there is evidence capable either of establishing that UNITE held a reasonable belief in the entitlement to vote of all its members, or enabling it to rely on an 'accidental failure' within section 232B."
The point that Unite was making was that any failings in its ballot were unintentional, and that that met the definition of "accidental". The judge said in his conclusion:
"In my judgment, an unintentional failure, as it was categorised by"-
"in the circumstances of this case, cannot be regarded as an accidental failure within the meaning of that section, even applying a purposive construction to its provisions."
Therefore, the problem for Unite was that it did not get over the first hurdle of "accidental". The problem was not, as the hon. Gentleman said, in relation to the test of
"on a scale unlikely to affect the result of the ballot"-
the judge did not even get to that-but that, as far as the judge was concerned, Unite had not got over the "accidental" hurdle. The hon. Gentleman's unhappiness with the existing legislation can be only with the definition of "accidental". If he wishes to move things forward, from his perspective, I suggest that he do so by instilling a definition of "accidental" that meets his requirements.
Mr Nuttall: My hon. Friend makes the point, which was touched on earlier, that the way around the problem, with which the judge had to deal when considering the case, relates to the current provision's use of the word "and". If the Bill were to introduce the word "or", one could easily understand the rationale for it.
Madam Deputy Speaker: Order. I think that the hon. Member for Shipley (Philip Davies) has already made that recommendation about how the Bill could be better drafted. We might be repeating the point.
Philip Davies: It is a red letter day for me, Madam Deputy Speaker, because I have just found out that you were listening to my speech.
Madam Deputy Speaker: Order. May I say, Mr Davies, that I listen to every Member of the House's speech, and I particularly listen when you are speaking. As you are such an accomplished parliamentarian, it behoves the Chair to concentrate.
Philip Davies: You are very kind, Madam Deputy Speaker. It really is a red-letter day now. I shall put that in the literature I will distribute at the next election. However, what surprised me was not just that you were listening to my speech, but that anyone was listening to it. I am afraid that my experience is usually otherwise.
I hope that the hon. Member for Hayes and Harlington will accept at least some of my suggestions of alternative ways in which to promote his side of the argument.
Jacob Rees-Mogg: I too have been listening to my hon. Friend's speech with great interest. Does he believe that the Bill could be amended in Committee, or does he think that we should vote it down and kill it off as early as possible?
Philip Davies: I am grateful to my hon. Friend. I hope that I shall have the pleasure of listening to his own speech today, because I enjoy his speeches immensely.
I intend to develop this point further, but my direct answer to my hon. Friend's question is that I believe we should vote against the Bill. I do not think that any of my suggested alternatives could be incorporated into an amendment, because the Bill goes off at a tangent to them.
At the beginning of his speech, the hon. Member for Hayes and Harlington said that, although others might perceive flaws in the Bill, it should proceed straight to Committee, where any such flaws could be ironed out. That strikes me as an argument for never giving a Bill a Second Reading. As my hon. Friend the Member for Bury North helpfully pointed out, the Bill has two clauses, and given that both appear to contain flaws, I do not think that amending them in Committee is an option. We should try to vote them down and start again from scratch. The fact that I have given advice to the hon. Member for Hayes and Harlington does not mean that I would agree with any of the amendments that I have suggested should he introduce them; I merely think that they would help him to deliver what he wants to achieve.
In deciding whether to approve the Bill, we must also decide whether it is necessary. It was, I think, my hon. Friend the Member for Dover who suggested that it was a solution looking for a problem. I hope that when he sums up his argument, the hon. Member for Hayes and Harlington-with his court verdicts in the bag-will tell us what problems the Bill solves, because all the evidence that he gave earlier involved problems that have now been cleared up by the Court of Appeal. It would be helpful if he told us about any current problems of which he is aware, because it seems to me that the Bill is wholly unnecessary.
Charlie Elphicke:
Does my hon. Friend agree that the errors in the Bill, although themselves minor, prevent us from supporting it today, and that we should enjoin the hon. Member for Hayes and Harlington to work positively with the Government to find a way of dealing with his concerns? That would enable the trade unions' own
concerns to be taken on board properly, would enable us to vote on them properly if it were found that the law needed to be changed, in Government time, and would ensure that account was taken of any merits in the hon. Gentleman's argument. His Bill might then actually hit the statute book.
Philip Davies: I am sure that my hon. Friend is right. As it happens, I am content with the law as it stands. I shall be interested to hear what the Minister has to say. I do not know what he will say and I do not want to pre-empt it, but I hope he will say that the Government have no intention of changing the current law, because, as the court has ruled, it is perfectly adequate. I am sure that the Government will always work closely with any Member if they feel that an injustice needs to be corrected, but I am not sure that that is the case in this instance.
Mr Nuttall: On 21 June 2010, the BBC carried a report headlined "Government shuns call to change strike laws". The report said the Government had indicated that there were "no plans" for alterations in the law on industrial action. That might help my hon. Friend. It will be interesting to see whether the Minister has changed that position.
Philip Davies: That is helpful and I am grateful to my hon. Friend for his intervention. Knowing the Minister as I do, I am sure that his position has not changed in the short time since then, because he is a very solid chap who would not change his mind so loosely and so quickly. Therefore, we need not worry about that, but we will listen with interest to what he says.
It is important to note that the original legislation that the Bill tries to change-the Trade Union and Labour Relations (Consolidation) Act 1992-gave protection to trade unions; it was not anti-trade union. Some of its provisions protect the rights of workers in a union that takes action, if necessary by striking, to defend and support their interests when reasonable notice is given and in contemplation or furtherance of a trade dispute. The Act protects the rights of workers to organise in or leave a union without suffering discrimination or detriment. It also defines trade unions and states that they are subject to legal rights and duties. It provides a framework for unions to engage in collective bargaining for better workplace or business standards with employers, so the thrust of the legislation already on the statute book should be welcomed by Opposition Members.
On the proposals of the hon. Member for Hayes and Harlington, the Institute of Employment Rights states that the purpose and effect of the Bill is to ensure that small accidental failures in ballots will be disregarded. I am not entirely sure that that is entirely the case, because my understanding of the existing legislation is that it does just that-it provides that small accidental failures in ballots will be disregarded. That is the wording of the existing legislation. The hon. Gentleman is trying to change it so that, so long as unions have demonstrated substantial compliance, such failures will be disregarded.
In passing, I wonder about the titles of Bills, because they often seem to contradict completely their supposed purpose. For example, the Equality Bill was about all sorts of things but it certainly was not about equality. The Bill that the previous Government introduced to restrict jury trial should have been called the "We think
the public are thick Bill". We should have some honesty about what Bills are trying to do. This Bill is called the Lawful Industrial Action (Minor Errors) Bill, but it seems that it is not trying to stop minor errors being taken into account, as the law already does that; it is trying to allow unions to be able to make some major errors in the ballot and have those disregarded, too. If the hon. Gentleman ignores all my earlier advice, which I am certain he will do, and brings back the Bill at another date, if he does not manage to get it through on this occasion, I will ask him for the sake of clarity to change the title to the Lawful Industrial Action (Major Errors) Bill because then we might have a better idea of what we are dealing with.
The Institute of Employment Rights also claims that minor errors in the information about the result of the ballot will be disregarded and forensic examination of procedures will end. That will worry people. The institute says that the forensic examination of procedures of unions carrying out their ballots will end and be replaced just with the concept of substantial compliance. I am not sure that the hon. Gentleman is renowned for having a laissez-faire attitude to things, but he certainly has a laissez-faire attitude to the running of ballots if he does not think that forensic examination of the procedures involved in the running of a strike ballot should be taken into account.
As we have heard, the burden of proof in injunctions will shift in that evidence will be required that substantial compliance has not taken place. How on earth can we expect the employer to carry out that burden-of-proof task of saying whether or not a union ballot was substantially compliant? Others have made that point, but it has to be emphasised because, clearly, only the union itself can demonstrate whether the ballot was substantially compliant. How on earth can the employer make that decision when they have had no control over the running of it and do not have the necessary information? In the speech of the hon. Member for Hayes and Harlington? I heard no explanation of how on earth an employer could be expected to do that. I suspect that that is because the hon. Gentleman knows that the employer could not possibly do it, and that therefore this is a tactic to ensure that the employer will never be able to stop any kind of strike action because they will never be in a position to do so. I hope that in his summing up the hon. Gentleman will give some examples of how he thinks employers would be able to demonstrate clearly that a ballot has not been substantially compliant.
Even though the original legislation was passed in 1992 by a Conservative Government-for the purposes that I have outlined-it was amended twice by the previous Labour Government, in 1999 and in 2004, and, as my hon. Friend the Member for Bury North (Mr Nuttall) made clear, the provisions the hon. Gentleman does not like were supported by his party when it was in government. I have not researched this, and I would not want to embarrass anybody in particular, but I certainly hope the hon. Gentleman did not at that time vote for those proposals in a Bill that he must have thought was completely unacceptable. It would be interesting to discover how many of the Members who voted for it in 1999 are today up in arms and complaining that this is an unacceptable piece of legislation, because they seem to be complaining about their own legislation.
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