Trade Union Bill
The Committee consisted of the following Members:
Glenn McKee, Committee Clerk
† attended the Committee
Julia Manning, Chief Executive, 2020 Health
Janet Cooke, Chief Executive, London TravelWatch
David Sidebottom, Passenger Team Director, Transport Focus
Shane Enright, Community Organiser (Unions and Workplaces) and Global Trade Union Adviser, Amnesty
Sara Ogilvie, Policy Officer, Liberty
Dave Smith, Blacklist Support Group
Jonathan Isaby, Chief Executive, The TaxPayers Alliance
Tony Wilson, Managing Director, Abellio London & Surrey
Leighton Andrews AM, Minister for Public Services, Welsh Government
Roseanna Cunningham, Cabinet Secretary for Fair Work, Skills and Training, Scottish Government
Grahame Smith, General Secretary, Scottish Trades Union Congress
The Chair: Order. We will now hear oral evidence from 2020 Health. Ms Manning, Members on either side of the room will be asking questions, but please give us a brief introduction first. We have to finish at 2.30 pm.
Julia Manning: Thank you for the invitation. My name is Julia Manning, chief exec of 2020 Health. We are a think-tank whose mission is to make health personal. That is very much about information, education, understanding and confidence for individuals to make decisions for themselves.
My background is that I served in the NHS for 19 years as an optometrist, firstly in the high street and then in hospital, in research practice and finally with people who are housebound, disabled, end-of-life care and also working in prisons with people who are sectioned under the Mental Health Act. So I have an NHS background and I continue to be involved in research. I am a research associate at UCL in medical anthropology looking at the impact of digital health technologies on behaviour and wellbeing.
Julia, I was not aware of your organisation before seeing you were giving evidence today. Could you clarify if you have ever had any associations with any political party in the past? Does your organisation or anybody in a senior position or present directors have any political affiliations?
Julia Manning: Yes. After 10 years in the NHS I was very frustrated that a lot of what I did was influenced and dictated by politicians. I had no prior engagement in party politics at all. I looked at what the different political parties were doing in health inequalities, and at that time, under the leadership of William Hague, the Tories were doing more than any party, so I joined the Conservative party.
I stood as a councillor and stood in the 2005 general election. During that period I became increasingly concerned that the front line of the NHS—whether managerial, clinical, research—did not have a voice when it came to policy formation, so I gave up my parliamentary ambitions and set up 2020 Health, which is about having vision for the future and not our sell-by-date.
Q 95 Stephen Doughty: Why do you think this Bill is necessary, particularly given the lack of industrial action in the health sector? The RCM has obviously not authorised industrial action before; it was the first time the RCM had gone on strike in its 134-year history. Given that, why is this Bill so needed in the health sector?
Julia Manning: I think you are right that the health sector is part of the public sector that has set a very impressive record of not taking industrial action. You cannot speak for everyone—there is over a million employees—but the ethos has been very much one of focusing on caring for the individual and doing everything possible to keep that as your primary focus. That is the perspective that I am coming from.
Q 96 Stephen Doughty: I am interested in that because you are talking about the relationships that exist in the health service and that ethos of patient care and so on. I am well aware that concerns about the Bill have been expressed to Ministers in writing and submissions from senior figures in the NHS, who have made a point of emphasising their strong partnership arrangements with trade unions and the fact that they are worried that the Bill is going to put that at risk—in jeopardy. In one letter that I have seen they say that it will make us less able to agree solutions locally to manage any potential impacts of any actions in the future. Would you agree that there is a serious risk that the Bill will put at risk those type of partnership arrangements that have ensured that patient care is the focus, even when there are industrial disputes?
Julia Manning: No, I do not agree, and I do not really see where that concern comes from. My understanding is that the Bill ensures that everything possible has been done in terms of sorting out issues at the front line and that it ensures that there is a large majority of opinion that action needs to be taken, rather than a few vocal proponents of action being allowed to have their head.
Q 100 Stephen Doughty: What do you make of the position of the Welsh Government, and, I believe, the Scottish Government as well, that significant parts of the Bill cut across the devolution settlement? These are fully devolved matters—health is a fully devolved matter, and yet the Bill effectively interferes in relationships that the devolved Governments have with the health sector.
Q 101 Stephen Doughty: So you would agree that the Welsh Government and the Scottish Government should have the freedom to be able to determine those local relationships, rather than being interfered in by the Bill?
Q 102 John Howell (Henley) (Con): The health service would be subject to the 40% threshold for strikes. Do you think that that has been drawn widely enough, and would you like to see any other bits of the health service included in that?
Julia Manning: In terms of detail, I have not clocked all the amendments, and one of my concerns was that certain areas would be excluded. Maybe you can tell me, for instance, what the terms are for some of the critical services, such as intensive care and emergency services, and whether they are different.
Julia Manning: Thinking about the Bill, the wider context is really interesting in terms looking at the trends for our ageing population, the greater proportion of people who will have long-term conditions, who will be dependent on interventions and who will have been lined up potentially seeking to have treatment and then feel that that might be jeopardised by industrial action. There is a volume issue here.
For me, the Bill raises the discussion that I feel we should be having around the changing nature of the workplace for the NHS as a whole, because of the impact and influence of technology, which is changing many of the duties and roles that people have and the opportunities for the public to look after themselves. It feels to me as though we are still talking about skills and the workforce as it is now, but what is it going to look like in five or 10 years’ time? It could be very different.
Julia Manning: Again, I will try not to get too technical or philosophical. The Bill does not go into the detail of the many different NHS roles and responsibilities, but those are going to change. As patients, as the public and as what we call “participatients”, we will have information and access to all sorts of things that we currently do not have access to, which have been the preserve of the NHS. Down the line, the impact of action could be quite different because of what we as the public will have access to, which will no longer be within the control of NHS professionals. That is something we should be mindful of.
I would first like to ask: are you aware that the current law in terms of trade unions participating in industrial action is that they must provide life and limb cover? If so, does that assuage your fears? In addition, what surveys have you taken of the members in your organisation? You did intimate to Mr Doughty that you are organised across the UK. Also, do you believe that, with any changes at all within any of the health services across the UK, there has to be a negotiated change and a mutual partnership arrangement between employers and the trade unions?
Chris Stephens: Basically, are you aware that trade unions have to provide life and limb cover in an industrial dispute? Does that assuage your fears of what is currently taking place in the workplace? Are you more relaxed that because a trade union under current law has to provide life and limb cover that you are comfortable with that? You have raised a lot of points on some of the earlier questions about the impact on patients.
Julia Manning: My concern with that is about the projected increase in the number of patients and, therefore, the workforce we will potentially need. We already have shortages in skill sets in all sorts of areas. If I understand you correctly, the opportunity to provide cover is going to be harder.
Q 108 Chris Stephens: In an industrial dispute a trade union is obliged to maintain services while workers are on strike, and to provide cover in case of emergencies: health and safety emergencies, for example. In the NHS, there would have to be some sort of provision for those who are critically ill. Have you considered the life and limb cover issues that are in existing trade union legislation?
Q 109 Victoria Prentis (Banbury) (Con): Going back to devolution, on which I recognise you are avowedly not an expert, take it from me that health is a devolved issue. I think my colleague mentioned that. Do you view the Bill as being concerned more with employment and industrial relations than health? Obviously, you look at it from a health perspective, but in your mind, what is the Bill concerned with?
Julia Manning: The Bill from my perspective and the interest I have in it is how patient experience would be affected by the Bill and has been affected by strikes. When we already have a scenario of shortages in the workforce and treatment being curtailed and postponed for other reasons, it is another consideration for us that would mean that people are not seen when they expect or need to be. That is my interest in the Bill.
Q 110 Jo Stevens (Cardiff Central) (Lab): Can I ask you about clauses 12 and 13? They propose to change the current arrangements for facility time, and facility time operates within the NHS. What do you know about the current arrangements and what do you consider their benefits?
Q 112 Rishi Sunak (Richmond (Yorks)) (Con): Concerning patients’ access to healthcare, as you mentioned, when there are strikes in other sectors outside healthcare, for example, in transport or schools, presumably that impacts a lot of people who are employed by the NHS or other healthcare operators. Do you have any thoughts on the disruption that strikes in those sectors have caused in healthcare and in the NHS, and do you think that this Bill will at all improve patients’ access to healthcare in those circumstances?
Julia Manning: That is an interesting question, particularly in the light of the recent strikes that we have experienced in London and on London transport, which we know have had a significant impact on the ability to run clinics in hospitals across the capital. That is the extent of our interest. Again, I take that back to the patient experience and either their managing to get there and then not being able to be seen, or their being told that they cannot be seen because of that action—the influence that has on someone who requires urgent treatment for sight loss or on someone who is isolated, has had a fall and then had their hip replacement postponed again.
Our interest is very much at that personal patient level, but the repercussions go beyond that individual’s experience, because of those around them and the other circumstances that have had to be arranged. Your point is very valid in terms of the influence of other industrial action on the ability of the health service to do its job and, quite practically, for staff to be able to be on site.
Q 113 Dr Lisa Cameron (East Kilbride, Strathaven and Lesmahagow) (SNP): I wonder what your views are on the opinions of the Royal College of Nursing, the Royal College of Midwives, the British Medical Association and the Society of Radiographers, which all state that
Q 114 Dr Cameron: Yes. For example, the RCM has spoken about the use of agency workers, which it describes as being potentially detrimental to patient care, in relation to those workers’ ability to understand patient care regulations within the workplace and so on.
Julia Manning: I agree that use of agency workers is always sub-optimal, but it happens all the time for other reasons. There are bigger issues, and issues that occur more frequently, which create the need for agency workers to be brought in. Those issues need to be addressed outside of this.
Julia Manning: That has to be looked at while considering the balance between the ability to take action and other factors, so you could argue from both sides that patient care will be affected if action is taken or if it is made more difficult to take action. Patient care is a concern that needs to be at the forefront of all decision making. Looking at the RCM in particular, it was very much at the heart of the call for action a couple of years ago but then stepped back, and I think that it did absolutely the right thing.
Q 116 Dr Cameron: But you have no concerns that your views appear to be in opposition to all these bodies, which represent medical and nursing staff and which are concerned about patient care, as well as the impact on it?
Thank you, Julia, for coming in. I have read many of your organisation’s reports; they are incredibly authoritative and look at many wider issues of health, including stress. The nub of this Bill—the biggest issue—is when cities and economies are paralysed by major strikes that are called on a low turnout. I think that is the biggest issue out there for the man or woman in the street. Those days are incredibly stressful for people who have to reorganise their childcare and who cannot get a train, so that they have to stand in a rugby scrum to get on a bus. But it is a serious point—commuting is one of the most stressful activities that we now do—and so I would like to have your thoughts on whether we can make life easier for people and have less stress by having fewer such disturbances.
Julia Manning: Yes, I agree with you, and that stress applies not only to those who are working in the system, but to those who expect to be treated on that particular
I recognise that that has been the exception rather than the rule in the NHS. I see that the repercussions of action taken by others, for instance in the transport sector, have a greater knock-on effect and a more direct impact than any action taken by the health service personnel themselves. But the scenario in which someone does not get treated for whatever reason and then has a fall—the worst-case scenario being that which results in their death—can be prevented. If we can put something in place so that that is less likely to happen, I would welcome that.
Q 118 Tom Blenkinsop (Middlesbrough South and East Cleveland) (Lab): I was going to ask a question, but you actually answered it in your previous response about the exception to the rule in relation to how industrial action might affect access to services for patients. How often, in your opinion, do the exceptional circumstances that you are coming out with actually happen?
Q 119 Stephen Doughty: Going back to the fundamentals of why you are appearing and giving evidence today, why did you think you were called to give evidence on the Bill? Why were you asked as a Government witness? Has your organisation lobbied for the Bill and the measures in it? Have you been meeting with Ministers arguing for the measures in the Bill?
Julia Manning: No, but we have a strong record on representing patient interests, talking about the patient experience and considering the wider landscape of change in legislation in terms of trends in population—
Q 121 Julie Elliott (Sunderland Central) (Lab): You just said that your organisation has a strong record on representing patient interests. In what way do you engage with patients? How representative are you? Are you represented across the country? How do you conduct that information-gathering exercise? How can you validate what you are saying in terms of representing people? Representation is a strong word.
Julia Manning: I agree, and right from the start it was something that we thought seriously about in terms of engaging not just with the front-line people who are doing the job and delivering services, but with those who receive them as well. The way in which we engage in all the research we do is that we have steering groups.
Q 122 Julie Elliott: To follow up on that, I represent a constituency in the north-east of England. I am not aware of anything you have done with patient interest in the north-east of England. You might have done something. How have you looked at things in the north-east, for instance, in terms of engaging with representing patients? Not speaking to charities or anything else, but representing patients, which is the term you used.
Q 124 Julie Elliott: About 30 out of a population of 4 million? Out of a population of 4 million in the north-east, about 30 people attended a workshop about one specific thing. Would you say that that represents patient interest?
Julia Manning: What I would say to you is that we are a small organisation focusing on particular areas of research. When we undertake research we make every effort to make people aware that we are doing it and encourage people to get involved.
Q 125 Julie Elliott: I totally accept that, but you said you represent patient interest. Would you like to amend that? Is it still your view that a workshop of 30 people out of a population of four million—
Julia Manning: That was my answer in response to your question about what we have done in your area. Let me give you another example. We did a piece of work that came out last year, looking at people with HIV in the population. We worked alongside all the major HIV patient charities and we specifically looked at the needs of older people, because more than half the people in the country now who have HIV are aged 50 or older and services are still organised for 25-year-olds. That is the kind of work we do, where we are thinking about the needs of under-served populations whose concerns have not been represented. This is the kind of thing that we will pull together and put into a policy document to present to those who are commissioning services and campaigning for improvement on behalf of patients.
Q 126 Julie Elliott: That is absolutely fine, but I question whether that is actually representing patient interest, which is what you said your organisation does. I struggle with the concept that your organisation is a representative body of patient interest. That is the point I am getting at. I am not having a go at any of the work you have done or how you have done it, but I struggle to reconcile what you said your organisation is there for—representing patient interest—with what you outlined that your organisation actually does.
Q 127 Edward Argar (Charnwood) (Con): Clearly it is in patient interests not to have treatment disrupted by action taken in respect of stoppages with a very small turnout. We heard this morning, and I think we all agree, that it would be useful if there were statistics—and we are not aware of any—that quantified the indirect consequence of stoppages in terms of days lost and disruption. In your experience, and recognising that we have not got those figures, would you assess, from your research, your conversations and the work you have done, that the impact on patients has been significant in the past?
Julia Manning: I think it has been incredibly significant to every individual who has been affected by this. The figures I have show that in 2011, when action took place, about 7,000 people had their operations cancelled and tens of thousands of people had an appointment cancelled. I think that for every one of those, it was significant.
Examination of Witnesses
The Chair: We will now move on to the next section of our investigation and take evidence from Janet Cooke, chief executive of London TravelWatch, and David Sidebottom, the passenger team director at Transport Focus. You have 45 minutes to answer questions, and it will be a question and answer session throughout. Before we start, I will just ask you to give a quick résumé of your situation and why you are here—briefly, if you can, for the members of the Committee, so that we can get on with the job of asking the questions. Ms Cooke, would you like to start?
Janet Cooke: I am Janet Cooke, and I am the chief executive of London TravelWatch. We were set up, in our current guise, under the Greater London Authority Act 1999. We are funded and supported by the London Assembly. We are run by a board who are appointed by the London Assembly following a public advertisement.
We are small organisation; our budget is just over £1 million, most of which is spent on staff. We have fewer than 16 full-time equivalent staff. Our role is to represent all users of Transport for London Services. That includes the tube, the underground and the buses, but also dial-a-ride and cyclists on the red route. Everything that TfL does, we represent the users of. We also represent all passengers using rail services in the London railway area, which is wider than the GLA area. The best way of putting it is that it extends to take in access to all of London’s five major airports, so we go down to Gatwick airport. We have a fully multi-modal role in representing those passengers and transport users.
We are an appeals body, so if people are dissatisfied with how a complaint they have made to an operator has been handled, they can come to us and appeal. That is for all the modes that we represent. We do some primary research, but with a very limited budget—we do very little primary research. We are, however, experts at looking at other people’s research and recycling it. We are also a statutory consultation body, so if you want to change the bus service or whatever, you have to consult with us.
Our entire remit is to act as the voice of transport users. There are two values that are particularly important to us. The first is independence. It is vital for our work that we are not only independent, but seen to be independent. Although we are funded through the political process, we are accountable to the London Assembly but our board make their own decisions based purely on the passenger interest. We are independent of operators and independent of the transport union. I have been chief executive since 2008.
David Sidebottom: Transport Focus is a non-departmental public body with statutory remits under the Railways Acts to represent Britain’s rail passengers, and under the Local Transport Acts to promote the interests of bus, coach and tram passengers in England outside of London. More recently, we were provided with powers in April to represent users of the strategic road network in England. Similar to Janet’s description, we take on individual representations from unhappy rail passengers and try to get a better outcome for them. In addition, we have a budget that we use to spend extensively on research to give us the evidence base to provide useful information to Government, train operators, bus operators and other stakeholder organisations.
Q 128 Stephen Doughty: Recognising what you have both said about independence and the role of an NDPB, have you, on behalf of those you represent, made representations to the Government arguing for the measures that are set out in the Bill?
Q 132 Stephen Doughty: There was a report from the GLA in 2011 and an independent review, both of which said that there needs to be an emphasis on the employer creating the conditions for dialogue to improve industrial relations, particularly in the transport sector, and thereby reducing disruption to service users. Are you able to comment on any progress in implementing those recommendations from the 2011 report from the GLA?
Janet Cooke: No. From time to time we try to follow up recommendations that the GLA or the Transport Committee in particular have made, if we have the resources to and if we think it is a particular issue that we should follow up. In terms of industrial action, however, we would not, although we would agree that there should be as much dialogue as possible so that it does not impact on passengers.
David Sidebottom: I cannot comment on the GLA, as our role is specifically outside of London. I will quickly mention one particular view that we have, which is about the impact on passengers of threats of action and the impacts of action directly. In the last five or six years, we have seen the emergence of rest-day working patterns and how short-notice voluntary action—that is probably the best way of describing it—can create uncertainty among passengers.
Q 133 Stephen Doughty: I assume you both also deal with complaints about passenger fares, increases and issues around ticketing and so on. Would you be able to comment on the role that trade unions have played in highlighting passenger concerns similar to those you are representing on the rise in fare complexity and so on?
David Sidebottom: Particularly through the research that we have done, we know that value-for-money ratings on Britain’s railway are a lot lower than overall satisfaction with rail journeys among passengers. As we get around to January, the time of year when regulated fares increase, we will see the unions do what they do and be quite vocal about the need for reinvestment in the railway. What we articulate is the view of the passenger, particularly through poor value-for-money ratings. That is something we challenge the Department on, in terms of franchising, individual operators and improving the lot for passengers.
Janet Cooke: In terms of the unions, we do not formally engage with them, but the unions have done good work over the years in essentially being proxy passengers if you cannot talk to passengers themselves. Our board has never called them to give evidence or to speak to the board formally, but if there is a board meeting—particularly one where we are looking at such things as applications to change ticket office opening hours or, more recently, TfL’s proposals to close ticket offices—it is usual for the unions to attend and be in the public gallery. At the chair’s discretion, they might be invited to say something giving the passenger perspective through the unions’ eyes, and our chairs have usually allowed them to do that. It has probably been helpful.
Q 134 Seema Kennedy (South Ribble) (Con): It is a pleasure to serve under your chairmanship, Sir Alan. This is a question for both witnesses. You have spoken about the threat of action on the railways in particular. Do you have experience of people saying to you, “I am worried about the strike”, and perhaps changing their travel patterns and pushing traffic on to the
David Sidebottom: On the slightly broader subject of disruption generally, we know that passengers crave timely information that is targeted at them specifically. In the early part of the summer, with the potential strike by Network Rail, both sides were able to negotiate right to the wire. The railway planning system is not sophisticated or agile enough to get emergency timetables up on the system and taken off again at short notice.
People are trying to make decisions about whether to take a journey. I have no evidence of people shifting on to the road, although I suspect that they probably did. They were thinking, “I need to be somewhere in two weeks’ time and there is a threat of a strike on that day.” That is the slight difference with the threat of strike action—bargaining seems to go right to the wire, which is probably inevitable in the game that is played, but for passengers that creates more uncertainty than engineering works on a bank holiday weekend. At least with engineering works, passengers know that it will happen, although they may not like it, and information can be put out to help them.
David Sidebottom: Passengers may innocently go on to websites to book a train ticket, unaware that there will be a strike. They may buy their ticket in advance for a day when there might be strike action. They can get their money back and that is sorted out, but if you are aware of the strike, you are damned if you do and damned if you don’t. I am not speaking on behalf of the train industry, but it is equally difficult for them. They can put all the emergency planning in place, but at what point do they allow it on to the systems to give passengers a definitive answer as to whether they can make a journey?
Janet Cooke: In outer London people are able to use their cars—certainly, looking at the BBC reports, there was a big increase in congestion—but for most commuters travelling into central London the car is not a realistic option because there is too much congestion. So there is crowding onto other modes. You made comments earlier about being packed in like sardines; that is the London commuter experience already. So if during peak times you have further congestion because one mode is unavailable that makes things very difficult. The threat of strikes is almost as disruptive, because people change their plans for the day.
Q 136 Seema Kennedy: In what people submit to you, do they talk about crowding, the stress in terms of organising their lives, business things and childcare, and about travelling on very crowded buses?
Janet Cooke: Yes, we have never done any formal research, so I have no sound evidence that I can quote, but we do get feedback from passengers. I think that 25 people contacted us during the summer specifically about the threat of the tube strikes. That is a lot for us. It gets mentioned in other activities and, by and large, people are not happy about it, but they tend to put up with it. They see it as part of London perhaps—I do not know.
I have a question for Janet, if I may. You did some research, in May 2014 I think, about the dangers presented by overcrowding on the London underground. Many employees on the underground share those concerns. Do you think it is right that they should have the right to take industrial action to address their and passengers’ health and safety concerns?
Janet Cooke: As I said earlier, we have no view on whether staff should be able to strike. Yes the underground is overcrowded, but I think that London Underground closes the network—restricts access, as you will all have experienced at Victoria station—if they think that the platforms are getting dangerously overcrowded. It is a measure of whether you think it feels very overcrowded. It is certainly very uncomfortable, but I am not sure that London Underground would run the system if it felt there were an absolute health and safety risk.
Q 139 Jo Stevens: Do you also accept, if I do not push you too far into areas into which you do not want to stray, that facility time in the workplace— trade unions having time to carry out trade union duties— helps in generating those issues and resolving things such as health and safety concerns about overcrowding?
Janet Cooke: I think that we would expect Transport for London to be a good employer and to allow, as a good employer should, the appropriate legal time for the trade union activity that is required. I do not think I can go any further, I am afraid.
Janet Cooke: I do not think that I have a view on that and, I will be honest, I am not sufficiently familiar with exactly what you are proposing to be able to comment. Without doing proper research, I could not give a view.
David Sidebottom: I think the same. We do lots of research into how passengers are disrupted, with Network Rail, train operators and passengers. If there were more frequent strikes and disruption on the railway caused by industrial action, we would perhaps be prompted to spend time and do some research on the impact felt by passengers. Like Janet, I have not formed a particularly strong view based on any evidence that we have gathered.
One point that I picked up from doing some background reading was notification of strike action. For rail passengers, whether it is seven days or 14 days, the issue of getting the information is the key thing. It is not just social media and websites, it is posters at stations and that kind of thing. That is probably the best help I can give in terms of answering the question.
David Sidebottom: I am interested, as a representative of a consumer organisation, in the impact on individuals of planned or unplanned engineering work or disruption such as industrial action. I am interested in the quality of information and how passengers are empowered to make a decision about where to go and how they make an alternative journey.
One thing we ask is for passengers to rank their priorities for improvement. We often see nothing in our research about information on the back of industrial action. It is about the things that are important to them: a punctual, reliable railway, good value for money and getting a seat.
Janet Cooke: Having done a little research on the internet on strikes that have been reported, certainly in the past six months there seems to have been an increasing amount of industrial activity in the London area, which has an impact. In the past six months we have had five actual strikes—three on the underground and two on Great Western—and four threatened strikes—three on National Rail and one on the tube. We have just had the last strike, which in the end did not have that much impact on passengers because Transport for London continued to run the service on the Waterloo and City line. Now DLR workers are balloting about strike action, so there certainly has been an increase in the amount of activity.
Janet Cooke: It is the attrition. For the first strike, people can often make other arrangements. Strikes have a particular impact on people in jobs where they do not have flexibility. I could work from home if I could not get into work or I could start late and finish late, or whatever. People working in critical, front-line jobs, who do not have that flexibility, are affected disproportionately, because they have no options.
David Sidebottom: Back in 2009-10, London Midland inconvenienced passengers as a result of its inability to roster railway staff to work on Sundays. That is a traditional working pattern that was provided largely through overtime and informal arrangements. We have seen a bit of that with one or two other train operators in recent years, but not on a large scale.
The bigger impact for passengers is short notice and cancellations. It is not a week’s or two weeks’ notice. The ability of a train company to buy out those working arrangements is very much between it, the unions and the staff. It seems to be something that is not quite cured yet. I do not know how that would fit with the Bill, but it does come across as inconveniencing passengers slightly more.
Q 143 Chris Stephens: I just have one question for the organisations. If for any reason existing staff, in this case train drivers or bus drivers, were replaced by agency workers, who would be inadequately trained, that would cause both your organisations concern for passenger safety.
Q 144 James Cartlidge: I want to focus on the point about timing of ballots. You may be aware that the Bill introduces a four-month time limit. You are talking about the uncertainty caused by striking. It seems that it is on the transport network that these long-standing ballots have been used. What is your view? Do you support that time limit, so that there is greater certainty for yourselves and your passengers?
David Sidebottom: The message that we get loud and clear from passengers whenever there is any disruption, whether it be industrial action, bad weather, or engineering works is, “Get me out of the mess that you are putting me into. Give me the options, give me the information on which I can make choices. When I get up in the morning, is my train going to run, because there are three inches of snow outside and the wind has been blowing, or is there a threat of industrial action?” The requirement for quality information comes across loud and clear.
David Sidebottom: We scour the websites for information provided by a train company, whether it relates to weather, engineering works or strikes. I was talking with colleagues about this a couple of days ago. We were trying to count instances of action, leaving aside the industrial action with Great Western over the course of the summer. They were few and far between. There have been lots of threats of action, and that causes the uncertainty. As we have seen, particularly with weather disruption, the ability of a train company, Network Rail and bus operators to get information out to passengers in a timely, clear and effective way is the bigger challenge.
Janet Cooke: We would expect operators to provide that information. We just put information on our website. As David says, we keep a very close eye on the information that the operators are putting out and, particularly in London, information about alternative routes that people can take.
I suppose the one thing that we notice is that we get anything from double to five or six times the number of people visiting our website when industrial action is threatened. That is one of the few indicators that we have. So, people are desperately looking for information and it needs to be kept up to date. That is the other thing. The threat of strike action is obviously intended to be disruptive; it is the amount of services that actually run that matters. And obviously the operators will want to be as optimistic as they can be, but sometimes the strike action is not as had been intended, so it is also about keeping passengers up to date with accurate information throughout the day. It is not just the spin about which services are running. So, if people have got to work, they might be able to get home by the mode that they usually use. It is about that up-to-date information through the day as well.
Q 146 Stephen Doughty: Janet, you were quoting some statistics a moment ago about industrial action apparently increasing in London in recent years. Are you aware that London Underground and Transport for London use a statistical measure called lost customer hours?
Q 147 Stephen Doughty: Obviously, that can reflect either lost customer hours due to industrial action or it can relate to other causes. Now, I accept that in the last four years there has been an increase in lost customer hours due to industrial action, but what is very telling is that in only four out of the last 12 years has the proportion of overall lost customer hours as a result of industrial action been larger than 10%; it has never been larger than 20%. So, the vast majority of lost customer hours are due to impacts other than strike action or other industrial action; I imagine that it is due to defective equipment, overcrowding, signal failures, adverse weather and so on. Therefore, do you agree that when you look at the overall customer experience, as you are doing, industrial action and its impacts must be kept in perspective?
Janet Cooke: I would agree with that, but the work that is essential in London is to keep London moving, because there is an ageing infrastructure and so many people are using it. The work to upgrade the tube lines, the new trains that the train companies are running and the works to upgrade the lines into London Bridge should make services more reliable and lead to a reduction in lost customer hours. So, the danger is that industrial action will represent a higher proportion of lost customer hours, when lost customer hours should be going down.
Q 148 Stephen Doughty: I agree, but even in the last four years—in 2011-12 and 2012-13, it barely registered. In 2011-12, 1.3% of lost customer hours resulted from industrial action; in 2012-13, it was 4.9%. I accept that the figure has been higher in the last two years, but these are relatively small numbers; I am not saying that they are not important, but they are relatively small compared with all those other things.
Janet Cooke: I agree, but I would also say that there is, quite rightly, intense media interest in anything like this. So, the headlines really big it up when industrial activity has an impact on passengers, which is probably part of what is meant to happen from the union perspective, but that all adds to passengers’ feeling that disruption is increasing.
Q 149 Stephen Doughty: But do you agree that there is a danger that if we make national Government policy and legislation for a very, very large area based on media feeling about something—the kind of rhetoric that we hear from some of us around this Committee table—?
Janet Cooke: We said earlier that we did not have the formal evidence to give you, but how the media reacts to things helps to inform passenger opinion; I think that that is probably as evidence-based as I can get.
Q 150 Stephen Doughty: David, I do not have the statistics for the rest of the UK transport network, but do you accept that there is a similar thing here, and that we should keep industrial action in perspective, taking into account other reasons for lost customer hours?
David Sidebottom: I think so. We have specifically asked passengers what the priorities should be for improvement, and we also ask whether they are satisfied with what they have got now. We have focused on those areas where there is high priority for improvement and a low level of satisfaction. Information provision is the key driver of dissatisfaction for Britain’s rail passengers, so we focused on that and how the problem manifests itself.
The challenge that we saw over the summer with Network Rail and the “will they/won’t they?” strike situation caused a dilemma for the industry as much as it did for passengers. That is when we put emergency timetable information on to websites and make it available to the public.
Q 151 Rishi Sunak: Following on from the comments of the hon. Member for Cardiff South and Penarth, if the numbers and the percentages seem small, I am puzzled, as you said before, that Londoners seem to have accepted that strikes are just part of London. It makes me think that the constant talk—are they going to happen, are they not going to happen?—and the uncertainty adds to the disruption to people’s lives, as well as the strikes themselves. Would that be a fair comment?
Janet Cooke: Yes, it does add to the uncertainty. My comment was not intended to be flippant, but from the feedback we get there is an air of resignation about commuting in the London area. It is going to be overcrowded; it is great when it works, but it does not always work as well as it might. Maybe my point was slightly inappropriate, but it is part of an overall feeling. I think that, as commuters into London, you just accept, if you commute a long distance into London, what the experience tends to be like.
Q 152 Rishi Sunak: Picking up on something you said earlier, I am interested in how different types of people on different income levels are affected by strikes. You mentioned that people in certain jobs are probably more easily able to work from home—for example, people in office jobs—than people in shift work and lower-paid jobs, where that is more difficult. Will you talk about your experience of that?
Janet Cooke: We at London TravelWatch have not done much research on that. The only thing I could say is that we are in the middle of doing some focus-group research—not on strike action, but things sometimes emerge in focus groups that you are not necessarily expecting—and certainly one or two that I observed a couple of weeks ago were talking about the travel experience in the London area and ways of getting to work. Spontaneously, because there have been quite a lot of tube strikes, there was a lot of discussion about strikes and their impact on people’s lives. These were people on very low incomes whose employers had paid for taxis to get them to work. This is not necessarily statistically accurate; it just happened to be spontaneously coming up in focus groups I was observing.
Q 153 Julie Elliott: You have both talked about your organisations representing passenger feelings. My hon. Friend the Member for Cardiff South and Penarth said that the overwhelming numbers of days lost through delays and everything else—even in London, the figure is about 80%—is not down to any form of industrial
David Sidebottom: On the general point about impact, the national rail passenger survey that we run gathers around 60,000 passengers’ views about their journey every year and the biggest driver of dissatisfaction is not just about the fact that there has been disruption but about the way it is managed. It is back to the information story and how you get me out of the situation you have put me in. So there is an impact there.
In answer to the earlier question about the impact on individuals, it is quite telling that when I was at Piccadilly station trying to travel home a few weeks ago on a delayed journey, listening to some conversations that were going on among passengers—people on zero-hours contracts, for example, who were not going to get paid that day because they could not get to their job—it does not just affect people who work 9 to 5. The level of impact can vary.
Q 154 Julie Elliott: I am well aware that not all people work 9 to 5. I travel 300 miles from my home every week to come to work—at least, the London part of my work—but I was asking whether it makes any difference to the impact on somebody’s life what has actually caused the delay or disruption, bearing in mind the tiny percentage that is caused by industrial action?
Janet Cooke: I do not have much to add. If your service is running or you are delayed excessively, it really does not matter. With a strike, you think, at least it will be over tomorrow. If it is a problem on the network, then you might not be so hopeful.
Q 155 Dr Cameron: To what extent is the evidence you are presenting today applicable to the experience in Scotland and, perhaps, Wales, given that much of your work appears to be in England and particularly in London?
David Sidebottom: On rail in Scotland and Wales, we are a GB-wide body on rail passenger representation. The information that we gather covers England, Scotland and Wales. We work very closely with Transport Scotland and provide information there. In fact, the rail passenger satisfaction survey is a key target with the new franchise arrangement between Transport Scotland and Abellio ScotRail.
Examination of Witnesses
The Chair: May I thank you for coming in before your time? It is always a bit nerve-racking for anybody. We will move on to the oral evidence session for Amnesty, Liberty and the Blacklisting Support Group. This period runs up to 3.45 pm. I will invite you to come forward and give us a short address, a résumé of your role in this. We will then move on to questions and answers from both sides. If you can make your answers fairly succinct and brief, that would be helpful, because we can get more in if we do it that way. Without further ado, Ms Ogilvie, would you like to introduce yourself?
Sara Ogilvie: My name is Sara Ogilvie. I am a policy officer at Liberty, the human rights organisation. The reason why we care about the Trade Union Bill is that we think that trade union rights are a fundamental part of the human rights framework. They are part of freedom of association, which is article 11 of the European convention on human rights. We also care because we think that membership of a trade union helps individuals to enforce some of their workplace rights and the workplace entitlements conferred on them by Parliament. That is our general interest in this area.
Shane Enright: I am Amnesty International’s trade union campaign manager. I am also the global trade union adviser to Amnesty International. We share the concerns that Liberty has expressed. Amnesty International firmly believes in the right to form and join trade unions, to collectively bargain and to strike. They are universal human rights and critical enabling rights that facilitate people to defend their livelihoods and working conditions and to protect the public services on which the vulnerable are most often dependent.
Dave Smith: I am an ex-construction worker who was blacklisted because of my trade union activities by some of the largest construction companies in the UK. I am now the secretary of the Blacklist Support Group—the justice campaign set up after the blacklist files were discovered in 2009. I am also the co-author of the book, “Blacklisted: The secret war between big business and union activists”, which goes into the detail of the links between the police and big business against trade unions. Because of our experience as blacklisted workers and because of the research I have done for the book, I have grave concerns about some of the elements of the Trade Union Bill.
Q 157 Stephen Doughty: I have a couple of questions that are more directed towards Sara and Shane, and then I have a question for Dave. I have carefully read what Liberty and Amnesty have had to say on this. The British Institute of Human Rights made some strongly worded statements. I understand that there are particular concerns on the intrusion of the state into freedoms of association and assembly for trade union members; the undermining of the right to a private family life in some
Sara Ogilvie: As I said at the start, article 11 of the European convention on human rights is the right to freedom of association, and that includes an explicit protection for joining trade unions. That is also the article that protects our right to freedom of assembly, which is essentially the right to protest. I am concerned about the proposals in the Bill and the associated consultation because of the impact they will have on the right to picket and protest. For a picket to be lawful, clause 9 of the Bill would require the union to appoint a picket supervisor, to name that person in advance and to give their contact details to the police in advance. It would also require that individual to wear an armband on the day and to carry a letter of authorisation that they would have to show to the police or to anyone else who asked to see it. That is extremely concerning to me.
The thought that we would require a person in 2015 to wear an armband and carry a letter of authorisation at the behest of the state in order to exercise their rights does not seem right. In the particular context of trade union rights, I am sure that colleagues here will be able to talk in more detail about the concerns on blacklisting, but I think that the collaboration of the police in the process of blacklisting gives strength of feeling to why trade union members would not want to provide advance information to the police about who they are and how they can be contacted.
On the one hand, I worry that the provisions are discriminatory. Why would they apply to people on a picket, rather than to anyone attending a protest in general? But when you think about that, it is even more worrying: what if the proposals were applied to everyone who wanted to protest? It is ridiculous that they would have to undergo such processes. It seems to me that that is certainly going to bring us into conflict with the European convention on human rights because it is an absolute violation of the right to peaceful protest.
Shane Enright: I would like to expand on that a little. Article 11 of the European convention allows freedom of association and particular trade union rights to be circumscribed only in very particular cases. I am particularly disappointed by the impact assessments associated with the Bill because it seems to me that absolutely no case is made for the legislative provisions. Simply to assert, as the Department for Business, Innovation and Skills does, that the provisions are compatible, while providing absolutely no evidence or justification of where in law that compatibility exists, risks opening up a very serious legislative and legal conflict if the measures proceed as intended.
I would like to touch on the collective bargaining implications of the Bill. It seems to me that the provisions to limit facility time and the proposals to ban check-off arrangements in workplaces would be entirely without precedent in peacetime Britain. As you will know, the provision of facility time is governed by collective agreements between unions and employers on behalf of employees in the workplace—such matters are not determined by the state. It seems to me entirely unprecedented for the Government to retain reserve
Facility time is critical. We know from all the evidence—I am sure that the Committee will hear more in due course—that effective industrial relations in the workplace are facilitated by union representatives who can assist in many ways and in many domains. The amount of facility time that is appropriate can vary according to circumstances. For instance, when a workplace is undergoing substantial change—for example, where there is reorganisation, or where redundancies are being faced—it is not unusual for an employer to agree with a union to increase facility time so that representations can be made on behalf of employees in a free and collective way to facilitate that change. It absolutely beggars belief that the Government are making that proposal.
On check-off, I cannot see why it is the Government’s responsibility to interfere, yet again, in a voluntary arrangement between employers and employees. For instance, in my own workplace, we have not only a check-off arrangement that is voluntarily entered into and governed by the collective agreement between the employer and the union, but bicycle loans to encourage staff to travel to work healthily. We also have computer loans—a loan of which I have taken advantage—which of course supports efficiency when I choose to work from home.
Q 158 Stephen Doughty: And of course, as MPs we also have the ability to check-off on our own salaries for various purposes. You are obviously both keen observers of the legal framework in other countries around the world. These measures are being described as some of the most restrictive globally. What sort of league would the Bill put us in? With what countries would we be roughly comparable in terms of the level of restriction on basic rights?
Shane Enright: There are no universal comparators by which I can give a simple percentage, but I will refer to the digest of decisions and principles of the Freedom of Association Committee of the governing body of the International Labour Organisation. The jurisprudence of the ILO is absolutely clear and unequivocal in relation to a number of elements in the Bill. On the question of ballot thresholds of 50%, paragraph 556 states:
“The requirement of a decision by over half of all the workers involved in order to declare a strike is excessive and could excessively hinder the possibility of carrying out a strike, particularly in large enterprises.”
“By linking restrictions on strike action to interference with trade and commerce, a broad range of legitimate strike action could be impeded. While the economic impact of industrial action and its effect on trade and commerce may be regrettable, such consequences in and of themselves do not render a service ‘essential’, and thus the right to strike should be maintained.”
Sara Ogilvie: From the perspective of the European convention on human rights, the way the court that is responsible for that system looks at the issue is to see whether the essence of the right is infringed and whether
Dave Smith: My case is actually at the European Court of Human Rights now. During my case, the British Government intervened when it was at the Court of Appeal and admitted in their admission that article 8 and article 11 had been engaged during the process of blacklisting. I am concerned that there are restrictions on trade unions already, and outside of the existing legal framework, we clearly have large multinational companies breaching the human rights of British citizens—hard-working British citizens, I hasten to add. If there are to be restrictions on what is going on—there are scandals in industrial relations that need legislation—it should be primarily on the side of big business that is breaching our human rights, rather than on the side of construction workers who have basically been standing up for bog-standard legal rights.
The Chair: Can I just point something out to you? I said at the beginning that we need to be succinct in both the questions and the answers, and we have recovered all the time that we had to gain. This is fascinating and interesting stuff, but it is your time and the Committee’s time to ask questions of you. We only have a small amount time remaining, so if you could make your answers a little bit more succinct, that will be helpful to you and the Committee.
Q 159 Stephen Doughty: Dave, you might be aware that there were a number of debates on blacklisting in the previous Parliament that revealed quite shocking revelations, particularly in the construction sector. We heard about current and former Members of the House who had been blacklisted and their horrific experiences. I know that other Governments across the UK have taken measures to deal with the matter. Is your primary concern that there are a whole series of measures in the Bill that could essentially make it easier to blacklist workers? I am particularly thinking about the provisions around picketing.
Dave Smith: Very specifically, the issue that I am concerned about as a blacklisted worker is the undoubted police collusion in blacklisting. It is not even a question anymore. Peter Francis, the undercover police officer who spied on Stephen Lawrence’s family, has given statements that were read out in Parliament in which he admitted spying on the Fire Brigades Union, Unison, the National Union of Teachers, the Communication Workers Union and a number of unions in the construction industry. Having seen the blacklist files that were seized by the Information Commissioner’s Office, Peter Francis said that some of the information came directly from the special branch registry database.
There is another undercover police officer called Mark Jenner from a section of special branch called the special demonstrations squad. In the 1990s, I stood on picket lines with him and attended meetings with him.
Dave Smith: Very quickly, when we put in a complaint the IPCC said that every special branch in the country provided information about prospective employees to businesses and blacklisting organisations. My concern about the Bill is geared around the concept of picket supervisors having to have their names provided to the police. If the names have to be provided, it is inevitable that the police will collate them and that they will appear on some kind of database somewhere. I am very sceptical about the state keeping a list of picket supervisors. Any member of the public is allowed to come and ask for the picket supervisor authorisations as well, so it could be that employers are also coming and picking up the names, and members of the public. Potentially, you have three separate lists of trade union activists being developed by members of the public, employers and the state, and that could clearly be turned into a state-sponsored blacklist.
The reason I am saying that is that once the police information about trade union activists is written on a database or a computer somewhere, give me any possible way that you could exclude special branch from finding the information. There is a section there that gives the information to big businesses; they are quite open about that. That is my fear—that this will turn into a state-sponsored blacklist.
The Chair: Thank you very much. This is your time and the Committee’s time and we have little of it left, so could you shorten your answers? The Committee members are already in the mood to ask shorter questions.
Q 160 James Cartlidge: I will try my best. I welcome the three of you. We respect your passion for all your principles and none of us here is against the right of people to belong to a union or their right to withdraw their labour. The key concern that we, and the Government, have is that there have been a number of strikes in recent years called on very small turnouts and with small percentages of support, which have caused huge disruption for commuters and for people wanting to take their children to school. It is about that disruption.
Shane Enright: Let me first say that strikes are technically a matter of absolute last resort. They tend to represent a breakdown in good industrial relations in workplaces and to that extent it is clearly regrettable when situations reach that point. But I have cited ILO jurisprudence
I also make the point that the numbers of strike days that have taken place annually in the past decade are the lowest for many years. The number is currently at 0.8 million per year, which equates, across the entire workforce, to each worker taking strike action for one day every 15 years. That is a historically low level. If we compare that to the benefits that trade unions can add through effective collective bargaining in the workplace, I would say that the public are convenienced by having strong and effective trade unions.
Q 161 James Cartlidge: I shall try to be concise, by taking one fact. In 2011, 62% of England’s schools were closed by an ATL teachers union ballot with a 25% turnout. Do you think that that is fair on the parents and pupils?
Shane Enright: Absolutely. We have a democratic arrangement in this country whereby people in the political sphere are elected by a majority of those taking part in a ballot. We do not have an arrangement in this country, in this sphere or in any other sphere, where absentee voters—people who choose not to vote—are counted as voting against, which is precisely the proposal in this Bill.
Sara Ogilvie: Focusing on the issue of thresholds in particular, it is important to remember that, regardless of what the turnout is in a vote, trade union members are entirely entitled under law not to participate in strike action if they do not support it. So they can exercise their discretion to choose at the moment of the strike. Similarly, they cannot be penalised by their union if they do choose to strike. I worry that if we focus on the issue of thresholds and then say, “Actually, that doesn’t show whether people wanted to strike or not,” that is not really an accurate reflection of what is going on.
Sara Ogilvie: Of course I have a problem with it. I have to experience it, but, actually, human rights cause a bit of disruption. They are not always enforced in situations in which the whole of society would want that to happen. But I am trying to think of other human rights and I cannot think of another situation whereby if I wanted to exercise my right, I would have to go to a vote and all of my peers would also have to vote to exercise their right and that would be the system you would have to go through. This seems to be something that we would not accept for other human rights and it is not clear to me why we would impose it in this situation and not others.
Dave Smith: My concern about the thresholds and the turnouts that people are talking about is that a 50% threshold is being asked for in order to have a strike action, which might be about unpaid wages or asbestos. Of course, with a 50% threshold most of the people sitting in this room asking questions would not have got elected into Parliament, because most of you have not got more than 50%.
The Chair: May I stop you for a minute, Mr Smith? It is not really your duty to question the role of the Committee and Members of Parliament. We have decided and agreed to invite you in to give evidence to the Committee. You cannot then criticise the whole process of allowing you to do so.
Dave Smith: I do apologise. My point really was this question about why it is that the trade unions exercising a democratic right—a human right under the European convention on human rights—are penalised to such an extent, exactly as Sara said. Nobody else in any other circumstances in the country is being given this. If there is disruption because of strikes about asbestos or unpaid wages, the people responsible for it are the employers, not the trade unions.
The Chair: Can I just help you? We have got a lot of names down to ask questions and you have got a very short period of time to answer. If you feel that you want to give a fuller answer than you can on the floor, it is open for the Committee to receive written documentation. If, on any of the questions put to you, you do not think that you fully replied, you are more than entitled to submit more evidence in writing to the Members of the Committee, who will read that and take it into account in their deliberations.
Q 162 Chris Stephens: I want to ask Amnesty and Liberty if they have done any analysis on the basis of thresholds and the impact that would have on gender equality issues. For example, female workers are probably more affected by shift changes than male workers. Have you done any analysis on the democratic mandate of the devolved Administrations and other public bodies in terms of check-off and facility time as proposed by the Government?
Sara Ogilvie: On the issue of gender inequality, this was a surprising statistic to me: there are more female trade union members than male trade union members. So it seems likely that reducing the right to strike of trade unionists will impact more on women. Certainly, when we look at low-paid jobs across society, many more women are employed in them than men.
I am ashamed to say that I do not know a huge amount about how much it will impact on the devolution settlement. I am aware, however, that the proposals in the Bill do not seem to reflect adequately the make-up of government, local authorities and other public bodies in Scotland and Wales. If the proposals are to be introduced—I hope that they will not be—there will need to be much further thought about how they will work in practice.
Shane Enright: Briefly, I have seen figures—I do not have them in front of me—from the TUC that indicate that 72% of those who will be affected by these public sector strike thresholds are women. Women represent a greater proportion of employees in the public sector and, as mentioned, are now a majority of trade unionists overall in our economy. Inevitably, there will be a
Dave Smith: Blacklisting is not a myth. When we talk about this, people sometimes think we are making it up. The impact on the 3,213 people whose files were found in the construction industry has been that every time they applied for a job, because their name was on this list—this is the key thing for us: the police are going to be holding a list, and the police have been complicit in the blacklisting that has been going on in the building industry. The building industry will not be something special; it will happen everywhere. The impact was that every time we applied for a job, our name was checked to see if it was on this list. If it was, you were dismissed or not given a job in the first place. It means that people had massive periods of unemployment, even though they were very skilled workers, and, prior to becoming involved in a union, had unblemished unemployment records. It means that people lost their houses. It means family breakdowns and divorces, and in some cases, we have reported that there have been suicides.
To be crystal clear about this, I would like to quote something put out last week by Balfour Beatty, Carillion, Costain, Kier, Laing O’Rourke, Sir Robert McAlpine, Skanska and VINCI. They changed their defence to say that they were actually involved in blacklisting and have produced new documents. The statement from their PR people says that the new documents
“contain a full and unreserved apology for our part in a vetting information system run in the construction industry first through the Economic League and subsequently through The Consulting Association; we recognise and regret the impact it had on employment opportunities for those workers affected and for any distress and anxiety it caused to them and their families.”
The Chair: Mr Smith, I have been really quite kind. You went very wide of the mark. If you get the documentation you refer to and wish to submit a new written piece to the Committee, I will more than willingly distribute it, but I am going to move the Committee on at this stage. We need to get more questions in, because we have little time left.
Q 163 Victoria Prentis: Amnesty and Liberty are both doughty defenders of human rights around the world in terms of abuses such as torture and execution, particularly in the case of Amnesty. I do not know if you have the Bill in front of you, but subsection (8) of new section 220A, inserted by clause 8, states:
Shane Enright: Absolutely. It is a way of singling people out. It is a requirement that is absolutely unique to this group of protesters. Why should trade unionists be required to undertake a process of identification when they are protesting that others are not required to? It is discriminatory.
Q 164 Victoria Prentis: I understand that the current code of practice says that everybody should wear an armband. That is not normally enforced, of course. Normally, the organisers of protests do wear an armband, but that has not caused particular difficulty.
Sara Ogilvie: There is quite a clear distinction that it is important we draw between when something is in a code of practice or when we do it because it is good practice and we think it will make things easier, and when there is a legal requirement for something to happen. When there is a legal requirement, there are legal consequences. The consequences of this would be not only the person identifying themselves and all the concerns we have heard about blacklisting, but also, if that requirement is not complied with, it is a reason to void the entire strike. That is a secondary consequence of this. It seems a very disproportionate response. It is those two elements.
Q 166 Victoria Prentis: Which would have been difficult if someone had left them at home; it would not have been proportionate to have voided the whole strike. But surely for the organiser of a particular event, it is not too much to ask them to identify themselves.
Sara Ogilvie: I think we have to be honest about the fact that it is quite a big issue. There are so many human rights issues that we think, “Maybe these are trivial”; there is quite a lot of talk about that at the moment. But for individuals who have wanted, for example, to wear a chain with a crucifix on, that is something that the courts have said is not a trivial human rights issue. When Rosa Parks was asked to sit at the back of a bus, some people then would have said that that was a trivial human rights issue. I absolutely think that asking people to identify themselves, to risk going on a public list, as a result of which they might be discriminated against, and to jump through lots of hoops in order to exercise their rights, that really concerns me; it is not me feigning affectation.
Sara Ogilvie: When people choose to do something, and when people are required to do something and there are very strong consequences because of that requirement, I think that is a difference, yes, and it is a significant one.
Q 168 Seema Kennedy: I want to go back to this picket supervisor code. If you have large public assemblies—even on things such as school trips, which I have supervised, I have to wear an orange tabard. Is it the actual armband that is causing the great objection? You might have thousands of people on the streets. Surely, just for public order, somebody needs to be able to identify who is in charge.
Sara Ogilvie: If we want to compare it, there are rules in place that govern marches and other kinds of protest. There are not rules about demonstrations; there are rules about marches. If you have a rule about a march,
Q 169 Seema Kennedy: Nobody wants to condone blacklisting—absolutely not—and it is very much to be welcomed that in the building industry we are moving away from that. [ Interruption. ] I sense some scepticism, looking at the Benches. But of course we want to move away from that; people should have the right to strike. I wonder whether there is an objection to the use of an armband particularly.
Dave Smith: What there is an objection to is that if you are on a school trip, you are not being asked by the police to provide your name, and if I am on a picket line, I am not breaking any laws. I have not done anything illegal, and without any suspicion, or due suspicion that I have broken laws, the police will come and take my name.
A number of people have mentioned the London underground during this debate. For the London underground, you might need a picket supervisor on every single station; on large stations, you might need a picket supervisor on different entrances. And for the RMT or whichever union, they would have to provide a list of possibly hundreds—literally—of picket supervisors to the police, and they have not committed any crime. That information will be collated and will be put on a police database, and we have fears where that goes. How can you stop it being given to special branch?
Just on the school trips issue, there are checks that one would have to go through; you need Disclosure and Barring Service checks, and things like that. Okay, perhaps it was not the best analogy. All I am saying is that in terms of public order—
Sara Ogilvie: In terms of public order, the usual rules that would apply to public demonstrations or public protests already apply. These are specific additional requirements that are being placed on pickets, and pickets tend to be pretty small as well, so the requirements seem disproportionate. As I say, the normal rules apply; these are additional ones.
Shane Enright: Can I add something, and I will do it in one sentence? I do not understand what problems this Bill is seeking to solve. I simply do not see the evidence before me of disruptive pickets, of intimidation or violence on picket lines; there is simply very little evidence of it. Twenty million days a year are lost through workplace injury or workplace illness; 0.8 million days a year are lost through strikes.
Q 171 Seema Kennedy: The thing is, we want to get rid of all days lost. Yes, of course it is a small proportion and getting smaller, and we want to tackle days lost through workplace injury and things like that as well, but even though it is a small proportion, it is still having an effect on our economy and it is still disrupting
Shane Enright: I appreciate that there is disruption, but what is entirely absent from the Bill is any recognition or acknowledgement of the positive roles that trade unions play in the delivery of effective and efficient public and private services for the common good. I understand that the Royal College of Nursing has done an impact analysis of the role of trade unions in the health sector that comes to the conclusion that effective industrial relations involving trade unions has substantial positive impacts on safety, on the levels and quality of workplace training and across a range of key issues. So rather than talking about trade unions as necessarily being civil actors that have negative economic consequences—
The Chair: Sorry, can I stop you? We have very little time left and this is not the place for a conversation; it is a question and answer session for Members to ask questions of the witnesses. I am going to draw this section to a close and move on.
Q 172 Stephen Doughty: I want to go back to the beginning. Obviously, Liberty and Amnesty have outlined a whole range of issues with the Bill that they are not happy with. In terms of the potential for legal challenge, do you think it is inevitable, given the concerns we heard from Thompsons Solicitors earlier today, that aspects of the Bill, if not its entirety, are going to be subject to legal challenge?
Shane Enright: I think it is utterly inevitable. The European convention and the European Court exist for a reason, and I cannot see that the rights holders concerned would not challenge this at the European Court. Let us be clear here: trade unions are effectively the voice of workers and workers have universal human rights.
Sara Ogilvie: Yes, I share that view in terms of the protesting and picketing elements we have discussed. I also think that when we look, perhaps not at individual elements of the Bill—we have spoken about thresholds; we could talk about a lot more if we had the time, but we obviously do not—but the cumulative impact of those proposals will create so many bureaucratic obstacles and hurdles that you have to get through to call a strike that the right to strike will be illusory. That is a key area on which there will be challenge to the legislation. I should also just say that even if we ignore human rights arguments, the fact of the matter is that when we create lots of rules and laws, the people involved—trade unions and employers—who want to get these enforced will go to court. That is going to be expensive for them.
Sara Ogilvie: Certainly, we have seen a number of trends whereby the previous Government had different pieces of legislation that looked like they were trying to shut down various parts of civil society from engaging in public debate. What I am concerned about with the Bill is that it attacks freedom of association from a number of angles, but it will just create a lot of cost and a lot of regulation for the whole spectrum of actors involved.
The Chair: In the couple of minutes we have left, we have two Members still to go, so I ask them to make it very short. If we run out of time and the witnesses want to reply to the Committee, they can certainly email us.
Q 175 Ian Mearns (Gateshead) (Lab): I am very grateful, Sir Alan, and very happy to serve under your chairmanship this afternoon. I apologise for being late: I was on the Backbench Business Committee. The Bill covers the whole of industry, but we have heard from Government Members this afternoon that they are particularly concerned about measures impacting on public transport and schools. What impact on public transport, on the closure of a school or on families would the closure of a factory in Gateshead have, for instance?
Sara Ogilvie: Perhaps I can interpret your question to mean, what advantages do trade unions and the right to strike bring to society? I think we get a lot of advantages. The right to strike is perhaps the most vilified and obvious tool in the trade union toolkit, but it is just the stick in the carrot-and-stick analogy. Actually, the substantial part of trade union work is helping to resolve workplace disputes, which keeps our industries up and running, helping people deal with their problems and helping to ensure that we do not escalate to a strike. Those activities can be undertaken only if there is a reason for recalcitrant employers to participate in debates. Without strikes, they will not.
The Chair: I am afraid we have run out of time. We have to stop here because there are more witnesses to come in the next session. We thank you all for your attendance. If there is any other matter that you want to raise with members of the Committee, please put it in writing to the Clerks and we will certainly distribute it. Thank you very much for your attendance.
Examination of Witnesses
Q 176 The Chair: Thank you both for attending the hearing to answer the questions that Committee members will put to you. It is a strange way of doing things, but we want to ask you to introduce yourselves in a very short, precise manner and tell us about your backgrounds and why you are here. We will then move to a question-and-answer session, with Members asking you questions and you giving replies. Without further ado, Mr Wilson, would you like to start?
Tony Wilson: My name is Tony Wilson. I am managing director of Abellio London and Surrey. We are one of the London bus operators running red buses. We operate about 650 buses in London and employ 2,600 staff, about 2,200 of whom at least are represented by Unite the union under a recognition agreement.
Jonathan Isaby: My name is Jonathan Isaby. I am the chief executive of the TaxPayers Alliance—an organisation founded in 2004 that seeks to represent taxpayers across the UK. We have tens of thousands of supporters—about 80,000 supporters across the United Kingdom. We want to see lower, simpler taxes and less Government waste. We have conducted a lot of research over the years into how taxpayers’ money subsidises trade unions, and we have campaigned for that subsidy to be reduced as far as possible. Hence, I am delighted to have the opportunity to help the Committee with its deliberations today.
Q 177 Stephen Doughty: My first question is for Jonathan. I have asked this of the TaxPayers Alliance previously. You stated that you have 80,000 supporters, but how representative of the UK are they? How do you consult them? Do they pay you money? How are they distributed across the geographical regions of the UK, income brackets and so on? Give us a flavour of the people you claim to represent.
Jonathan Isaby: I will give you exactly the same answer, which is that we have a broad swathe of support from across the whole United Kingdom. We regularly talk to our supporters through weekly email bulletins. We hold events up and down the country, and we engage with politicians across the political divide.
Q 178 Stephen Doughty: I am surprised that you cannot answer, given that I have asked you this before. How have you consulted them about the Bill, and how many of them have lobbied you to see the Bill and all its provisions introduced?
Q 180 Stephen Doughty: Okay. You spoke a minute ago about transparency in political funding—the funding that unions give for political causes and so on. Given that you speak out on those issues, would your organisation like to be subject to the rules that the Bill will impose? I have been looking at a very interesting website called “Who Funds You?”, which basically says that the TaxPayers Alliance does not display funding information on its website, does not name its organisational funders, does not declare amounts given by organisational funders, does not name individual funders and does not declare amounts given by individual funders. Why is it one rule for you and one rule for trade unions?
Jonathan Isaby: Well, we are subject to zero subsidy from the taxpayer. We are entirely funded by private individuals. We take the view that when taxpayers’ money is being spent, there needs to be a very high standard of transparency, so that taxpayers can see what is being doing with their money. We have a very broad base of support—thousands of people are financially
Q 181 Stephen Doughty: So why should trade unions be subject to very intrusive explanations of all sorts of levels of funding? The Bill goes well beyond the established consensus on political funding and transparency. Why is it one rule for trade unions and a different rule for you?
Jonathan Isaby: As the Taxpayers Alliance has shown before, trade unions get a taxpayer subsidy in excess of £100 million a year. That is more than £100 million earned by your constituents that is effectively being handed to trade unions.
Jonathan Isaby: In the report that we published in 2013 or 2014, our most recent figures were that there were direct grants of about £23 million to trade unions from Government Departments and other public sector bodies and facility time was time worth at least £85 million a year, which is an underestimate, because a lot of public sector bodies are not properly recording facility time. There are some very good measures in the Bill that will crack down on that.
Jonathan Isaby: Well, that is another issue in the Bill. Only 22% of the public bodies that offer check-off are charging for that service, so, again, millions of pounds are being lost every year, which is basically a taxpayer subsidy to the unions through the provision of that kind of service. That is before we get into office space, telephone lines and other things that are not covered in the Bill but that I hope the Government will look at adding to it. Perhaps the Committee would like to add those things to the Bill because that is another subsidy that is totally unjustifiable in our view.
Q 185 Stephen Doughty: So you are not willing to tell us how many people have lobbied you on this or where your money comes from, but you are willing to come here and make statements about what should happen to other civil society organisations. That is the nub of it.
Jonathan Isaby: There are hundreds or thousands of campaign groups and campaigning charities that will appear before such Committees and are not subject to intruding on the privacy of those who support them.
Jonathan Isaby: When millions of pounds of taxpayers’ money is being handed to an organisation, whether it is a trade union or, indeed, a charity—a lot of charities are in receipt of huge amounts of taxpayers’ money—there needs to be a very high standard of transparency to justify to taxpayers where that money is going.
The Chair: Before we leave this subject, Mr Isaby, you made a lot of claims there about large amounts of money—£100 million and £85 million. Would you be able to write to Committee members outlining where those funds come from, because they have been a source of information that I think would—
Q 188 John Howell: I have a question for Mr Wilson. Can you describe the strike that your company faced? What was its effect on the travelling public and what are the likely effects of the thresholds?
Tony Wilson: The most recent strike was in relation to Unite’s quest for sector-wide collective bargaining across London. They obviously had to try to co-ordinate many legal entities. They managed to do that and we had a very low turnout in terms of our own workforce actually voting yes for the strike. It was even lower among union members as a proportion of the number of employees.
We were quite successful in the marketplace in terms of operating services. On the first day of operation, we got between 30% and 40% of the service out, but that is the peak-time service, which is what is mostly going to affect commuters both in the morning and afternoon. On the second day, 5 February, we got up to nearly 50% of our peak-time service out on the road. In any respect, that is a major disruption to the travelling public and it was not a great day for anybody who was trying to catch a bus. We were one of the most successful companies in terms of turning out services. Others varied at certain depots around London from zero to all the way up to similar levels to us. As a proportion of the total network, however, it was less than 50% out, certainly on the second day, which was the better of the two.
Tony Wilson: To me, the thresholds are all about proportionality. We rely entirely on collective bargaining within our organisation. We have a very good relationship with Unite. Across many years, I have never had any great issue with them. For us, it is the fact that very low numbers of the organisation can dictate to the mass. Some of that is to do with the fact that our particular company has quite a low percentage of union members
I heard something earlier on about picket lines. On 13 January, there was no police presence on our picket lines, but there were a lot of people, and a lot of staff who would otherwise have come to work were deterred from doing so. Most pickets were not particularly antagonistic—some were a bit different—but the sheer number of people that they had to pass to get into work was a barrier to them. At one depot, the roadway was blocked, so we could not actually get buses in and out. On the second day, co-ordinating with Transport for London, we had a large police presence on all of our sites. It was far more organised and there was a lot less disruption. It was noticeable that people do not want to come to work and cross that barrier. Whether on the day or the stigma afterwards, they do not feel comfortable.
Q 190 Chris Stephens: This is a question to the TaxPayers Alliance. I know from my previous employment that your organisation is well-versed in freedom of information. In relation to facility time, what do you consider to be a trade union duty and what do you consider to be a trade union activity? When you have done research into facility time, have you been able to establish how many trade union activists have had either part or all of their salary paid by a trade union?
In terms of check-off, why is it correct that public sector employees—even those who would be in a staff association—can pay council tax, rent and charitable donations via check-off, but not a trade union?
My last question goes back to the taxpayers and the democratic mandate. If a political party has been elected in a devolved Administration or a public authority and it has a democratic mandate to carry out good industrial relations by providing check-off, either charitable or free, or good facility time, who is anybody to interfere in that? Surely, it has the democratic mandate and the taxpayer has made that decision.
Jonathan Isaby: There are quite a few points there. You talked about the difference between activities and duties. Those things are defined, are they not? ACAS has defined them and our most recent report quotes exactly what they are.
Jonathan Isaby: No. I am not sure of the wording of the exact request that we put in, but the difference is that employees can take paid time off for duties, while the time off for activities is unpaid. What we are concerned about is the paid time off when it is taxpayer-funded time that is being used.
Obviously, in that respect, we are talking here about duties rather than activities, although this comes back to the point that we uncovered. I think I am right in saying that it was 344 public sector bodies, of which 154 were local authorities, 122 were NHS trusts and 37 were quangos, that either did not record facility time or only recorded it partially. That comes back to the whole issue that this Bill is seeking to address: it is unclear how much additional subsidy unions are getting and whether time is being spent on activities rather than duties,
Q 192 Chris Stephens: But you are making an allegation—I want to be clear about your answer—that in the public sector what is being allowed to happen is that activities that should be unpaid are being paid. Is that what you are alleging?
Jonathan Isaby: We do not know. The fact that so many bodies—literally hundreds of public sector bodies—are not properly recording this means that we have no idea. They are not recording it. Therefore, I think the Bill is absolutely right to be saying that this should be recorded properly, so that there can be proper accountability and knowledge that there is absolutely no abuse going on.
Q 194 Chris Stephens: Trade unions give money to public sector employers for some trade union activists who are on facility time, usually in cases of full-time facility time. You have not been able to establish that?
The Chair: Mr Isaby, in the context of the request that I made for Committee members, when you submit material could you also submit a paragraph or two on your view on that and how you arrive at those estimates or projections? If you can do that, it would be helpful to members of the Committee.
Jonathan Isaby: If there was a check-off, I simply do not think that it is for the public sector—that is, a taxpayer-funded employer—to organise its employees’ memberships of any organisation, whether that be a trade union, a political party, the National Trust, the Royal Society for the Protection of Birds, or whatever it might be. It is a private decision that people need to make. With direct debits and banking these days really making these things very easy for individuals to handle, there is no justification for that to be done by the employer.
Q 196 Chris Stephens: Surely, it is a contractual obligation. Have you established that in many public sector bodies there is a contractual obligation between the employee and the employer to have a check-off?
Q 198 Rishi Sunak: Mr Wilson, I have a question for you. One of the things that the Bill will do is to put in place a four-month ballot mandate for industrial action. I think we have heard earlier today that industrial action has been called on ballots that were two years previous, so there ought to be a meaningful change. I would be interested to know how that would impact your business, and how you think about your population of employees and how that changes over the time, and whether this would be a helpful or sensible measure.
Tony Wilson: I think it is a very appropriate measure. Going back to the incident of the strike in January and February, the ballot for that was prior to Christmas, in December 2014. We are still not out of the woods on that. The action has not been called off; it is not over. There have been numerous discussions in the intervening period. We have a turnover rate of 14% or 15% per annum in our bus driver workforce, so by now, the workforce is very different to the one that actually balloted. Clearly, there could be other people who would come in and vote in the same direction, but it is not right to say that the same populace that voted the first time is there today; it simply is not.
I think it is appropriate that ballots run out of time. Purely from a fairness to proportionality perspective, to have a refreshed vote with a new look by the people who are in employment at the time and are now going to be affected by it seems perfectly appropriate to me. I do not think the unions themselves—I do not think Unite would see that as a particular barrier. I think they recognise that even if the legislation changes in the way set out, they will just have to try a bit harder to mobilise their workforce, and they are very effective at that. I do not know that in practice, things will actually change too much. I think they will get more people voting, personally, and we will have a slightly different scenery.
Q 199 Julie Elliott: In your answer to a previous question from a colleague on the Committee, you made great play of the collection of information. Would you accept that for the local authorities or other public bodies that do not do that, there will be a cost to the taxpayer from collecting that information?
Jonathan Isaby: As I said to Sir Alan, I will happily give you the specifics on that. In terms of direct payments to trade unions, the Department for Business, Innovation and Skills gave the TUC £20 million in 2012-13.
Q 204 Julie Elliott: Can I just interrupt? You specifically said that trade unions receive grants. I am not aware of any grants that trade unions receive. I think you will find the BIS figure is to do with the contracts that were won regarding trade union learning, which was something that lots of organisations applied for and deliver a service for. What grants do trade unions gain from the Government or the taxpayer? I am a taxpayer, as are many trade union members.
Jonathan Isaby: I do not know how you want to define the word “grant”, but I am talking about amounts of money that are handed directly to trade unions from public sector bodies, quangos, local authorities and Government Departments.
Q 206 Julie Elliott: Can I take from that that you are not aware of any grants that trade unions actually receive? A grant is something applied for and given. Are you aware of any grants that trade unions receive from the taxpayer?
Q 208 Julie Elliott: So you are not referring to grants. Can we move on to your big bugbear of the afternoon, which is facility time? You seem to have a real problem with that. Would you accept that any
Q 209 Julie Elliott: That is therefore working in both people’s interests. The employer, whether it be public sector or anyone else, and the employee or their representative body, the trade union, are happy and come to that agreement freely, without anyone putting pressure on them to do so. They want to make that agreement because they think it works in both people’s interests.
Jonathan Isaby: Clearly it is agreed by both sides, but I should point out that the amount spent in the public sector on facility time is three and a half times the amount in the private sector. There is clearly an imbalance there. We have always said that we should be seeking to get the amount spent by the public sector in the same proportion as it is in the private sector.
Julie Elliott: Well, all I can say is that my anecdotal evidence—actually, most of what you are talking about is anecdotal evidence—as a trade union official for 12 years is that there are as many people on full-time or partial release in the private sector as there are in the public sector. That is my experience. I cannot back it up with factual information, but you cannot back up what you are saying with factual information.
The Minister for Skills (Nick Boles): I am sorry, but we have now had three separate sessions where Opposition Members have asked about 17 questions in a row. We have had a grave imbalance in the questioning. The Committee is meant to be impartial in its questioning and evenly balanced between Government and Opposition. I have not taken any of the Committee’s time to ask questions in this entire sitting, nor do I intend to, but I do intend to insist that there is a balance between Government and Opposition.
The Chair: May I say to the Minister that if he goes back in the report of this sitting, he will see that I switch from speaker to speaker and side to side, and that I only switch to the other side when a Member stops asking questions? It is not a question of the Opposition getting too much time. They are asking the questions, and your side, Minister, are not asking questions in the same numbers. I do, however, admit that it is time on this particular portion. Mr Isaby has promised to put forward all the information to members of the Committee in written form. We have dealt with how much we can deal with today. We still have two or three Members to call. I call Mr Cartlidge.
Q 211 James Cartlidge: Thank you, Sir Alan. The key thing for me, Mr Wilson, is that you are clearly at the coalface of all this. You have experienced what it is like running a firm with major industrial issues and disputes.
Tony Wilson: I do not think so. I have had discussions with our regional officer about before and after and what will make the difference. I think what I said about them just trying harder is absolutely true. What I have noticed over my years—many, many years now—is that it is the incidents of postal ballot that have gone up, and not necessarily the strike action. That is where we have faced more threat, in the softest terms. There is more likelihood that the workforce will go to the postal ballot. They will not necessarily go to strike action.
The only two strikes that we have faced in the London bus market have been over the Olympics and the sector-wide collective bargaining. If our business had voted on its own, there would not have been strike action on either of those issues in reality. I do not think our harmonious relationship will be affected by the Bill; we will just have a fairer process for the workforce at large in reality.
Jonathan Isaby: I think it is a very interesting area, which TPA is keen to look at. You have private-sector bodies delivering using taxpayers’ money. This gets into the realms of freedom of information. Organisations that are spending taxpayers’ money should be subject to similar rules and standards as in the public sector.
Q 215 Tom Blenkinsop: A final question, just so that the Government Whip does not get too irate. Mr Wilson—Mr Isaby, you can give your response as well—commercially, would you prefer to deal with one central voice that represents a collective bargaining unit or undergo individual consultation with every single employee?
Q 216 Edward Argar: That is what I was going to offer with your permission, Sir Alan. The question is to Mr Wilson. You touched on the 2014 dispute and ballot with Unite. Can you remind us what percentage of Unite members voted to significantly disrupt the working and daily lives of huge numbers of Londoners? I am happy for you to write if you do not have this to hand.
The Chair: Order. I am bringing this session to a conclusion now. For the last two questions, I would be grateful if you could submit written answers if you wish. Also, Mr Isaby, you could put together your paper of queries and forward that on to the Clerks or the Members directly. We will now suspend the sitting for five minutes to get the video link ready. Thank you very much, Mr Isaby and Mr Wilson. We are grateful for your attendance today.
Examination of Witness
Q 217 The Chair: We now hear oral evidence from the Welsh Government, the Scottish Government and the Scottish TUC via video link. For this session we have until 5 o’clock. Of course, Members know that we are at the mercy of technology. I warn Members that, not only in the House of Commons but everywhere, technology often fails, so if it does please bear with us—we will figure a way out. I aim to start with Cardiff and suggest that we divide the time equally between the witnesses. Do we have contact with the Welsh Minister?
Q 219 Stephen Doughty: Leighton, it is Stephen Doughty, speaking for the Opposition. Croeso. I have here the 9 September statement from the Welsh Government in the name of the First Minister, which very clearly states that the Welsh Government believe
“that significant elements of the Bill relate specifically to public services which in Wales are unambiguously devolved responsibilities. I therefore do not accept the suggestion that the Bill must be regarded as concerned exclusively with non-devolved issues.”
It seems very obvious to me where this sits in relation to health, education of under-17s, fire and a number of other potential areas. You have a range of concerns, so will you elaborate on where you feel the Bill breaches the devolution settlement? Given the First Minister’s statement, will you outline what consultation was undertaken between UK Government Ministers and Welsh Government Ministers?
Leighton Andrews: Well, I suppose our starting point would be, what problem is the Bill seeking to solve? We believe that the Bill contrasts sharply with the constructive social partnerships brokered in Wales. We have good relationships with the trade unions. We value our workforce and believe that they contribute proactively to the development of strong public services.
The First Minister communicated with the Minister in charge of the Bill in Westminster via letter on, I think, the day the Bill was published. The First Minister subsequently wrote a long, detailed letter to the Prime Minister outlining our concerns, as a Government, with the Bill. Those concerns, as you rightly say, reflect the fact that the Bill addresses devolved public services—health, the fire service, education under 17 and potentially other areas, such as some transport staff. Clearly, under the devolution settlement, it is for us to make policy in respect of education under 17, health, fire and rescue, and so on.
The First Minister’s letter to the Prime Minister also raised a fundamental constitutional issue in respect of our right to defend legitimate devolved interests. He said in that letter that we have great concerns that the nature of the Bill would cut across the devolution settlement, which is of great concern to us. We recently received a short reply from the Prime Minister, but we do not regard it as dealing with the key issues that we set out.
Leighton Andrews: UK Government Ministers have not yet written to the Welsh Government about proposals on check-off. We know, of course, that the UK Government made a statement in August, subsequent to the introduction of the Bill, that they are planning to take forward proposals on check-off. They are of great concern to public service employers as well as trade unions in Wales. Indeed, those issues were discussed at our workforce partnership council only last Thursday. Public service employers in local government, the health service and, indeed, the further education sector expressed their discontent with the Bill. As I say, we have not formally heard from the UK Government in respect of check-off yet.
Q 221 Stephen Doughty: Lastly, the UK Government clearly have form on this. You will recall, of course, the case that was before the Supreme Court regarding the Agricultural Wages Board. What is the Welsh Government’s wider experience of the UK Government’s legislating on matters that are devolved and have been found to be so by the courts?
Leighton Andrews: Well, I think you raise an important issue. Obviously, the judgment of the Supreme Court in respect of the Agricultural Sector (Wales) Bill confirmed that, provided an Assembly Bill fairly or realistically satisfies the tests set out in section 108 of the Government of Wales Act 2006, it does not matter whether it might also be capable of being classified as relating to a subject that has not been devolved, such as employment rights and industrial relations.
The policy background of the explanatory notes to the Bill sets the context of the Bill in respect of essential public services. That, of course, takes us into public
We also find it somewhat odd that a UK Government Bill of this kind seeks to specify, for example, how much union facility time employees have saved local authorities in Wales. We have been going through, for example, a local government reform programme, which might not be supported by trade unions in local government. Their access to facility time will be a very important element for us in ensuring harmonious relations with the workforce as our reform programme goes ahead.
Q 222 Nusrat Ghani (Wealden) (Con): I hope you can hear me okay. We took evidence earlier from Mr Wilson, who operates more than 700 buses. He stated that on a ballot turnout of 12%, two days’ industrial action was called. The 12% of people requesting industrial action may no longer be involved in his company now, because the decision was taken much earlier in the year. You spoke about schools earlier, and we also discussed the fact that on a 25% turnout in 2011, 62% of England’s schools were closed. I wonder what you think is a decent turnout for a ballot, considering that we are talking about accountability and transparency, and about making sure that the voice of every individual who is a member of a union is heard.
Leighton Andrews: I am sorry if you have had problems with strike action in England’s schools, of course, but let me say that in Wales we have been very successful in reaching agreements with trades unions that have avoided the need for strike action. For example, in respect of the firefighters’ dispute over pensions, we reached a solution and the Fire Brigades Union put off strike action in Wales. In respect of junior doctors, the British Medical Association’s advice has confirmed that the ballot for industrial action will not be taken in Wales. In respect of the agenda for change in the health service, the inclusive approach that we adopted led to the acceptance and successful application of a two-year pay deal in Wales, avoiding the threat of industrial action. In respect of education, we had constructive discussions with the trades unions and avoided the rolling strike action that was due to take place in Wales in 2013, while strike action was taking place in England.
So I suppose I go back to my opening comment: what is the problem that the Bill is seeking to address? The reality as far as we can see is that we have good relationships with trades unions in Wales and with our workforce. We have good relationships with public service employers in Wales and with our workforce. Public service employers in Wales do not support the Bill and do not see the need for it.
The Chair: Minister, before you go on any more, there are still three Members seeking to ask questions. I would ask you to be a bit more succinct. After this next question, I may see whether I can take all those three questions together, which might help you be as succinct as possible.
Q 223 Nusrat Ghani: One of the points that Mr Wilson raised about the 12% ballot calling for industrial action where he worked was that other members who wished to come into work felt intimidated. You talk about
Leighton Andrews: Well, I think that you would want the maximum turnout that you can achieve. I do not know Mr Wilson or the circumstances of that dispute. The point I am seeking to make here is that we are dealing with a matter that we regard as a fundamental constitutional question. This Bill seeks to impose conditions on Wales in public services that are devolved, where we have a responsibility to deliver public services. There is a major constitutional question at stake here. This is not a matter that we feel is going to improve industrial relations in Wales. It is not going to improve industrial relations within our public services; nor do we believe, at the outset, that there is a fundamental problem that needs to be addressed.
Q 224 Jessica Morden (Newport East) (Lab): In response to Stephen Doughty’s previous question about the Welsh Government’s previous challenges to things like the Agricultural Sector (Wales) Bill, can I ask you—without expecting you to reveal the content—to confirm whether you have sought advice from the Counsel General about the Trade Union Bill and its potential breach of the devolution settlement?
Q 225 Victoria Prentis: My question ties in quite well. It was held by the court that the agricultural wages case concerned agriculture. There is no way that this Bill could possibly be concerned with anything other than employment and industrial relations. It was argued that the agricultural wages case concerned wages but it clearly did not: the court held that it concerned agriculture. This is quite different, is it not?
Leighton Andrews: I start by saying that I am not in front of this Committee to divulge any conversations that have been held with our own legal advisers in respect of our position as a Government. We will reach our own conclusion as to whether this Bill from the UK Government requires a legislative consent motion. That is something we are currently considering.
In respect of the Agricultural Sector (Wales) Bill, I think we need to be clear about that Bill. It went beyond what was said by the questioner. What it confirmed in that case was that where an Assembly Bill fairly and realistically satisfies the test set out in section 108 of the Government of Wales Act 2006 and is not within an exception, it does not matter whether it might also be capable of being classified as relating to a subject that has not been devolved, such as employment rights and industrial relations. The Trade Union Bill very clearly relates to devolved public services—that is the three obvious ones: fire and rescue, health and, of course,
In respect of relations with Scotland and Northern Ireland, officials certainly have had contact with Scottish Government officials. The legal situation in Northern Ireland is slightly different from that in respect of Scotland and Wales, but I think that there is considerable unease among the devolved Administrations about this Bill.
Examination of Witnesses
The Chair: What we are going to do is introduce Members to ask questions and then you will reply to those questions with your answers. [ Interruption. ] Thank you very much indeed, Minister, for staying with us. Technology, at times, is a bugger. I know that that will go on record, anyway. What we are going to do is to put questions to you from Members, and then hopefully you will give us the answers and we will hear them.
Q 227 Stephen Doughty: Fantastic. I will ask you a similar question to the one I have just asked the Welsh Government Minister. Given the quite clear constitutional implications of the Bill cutting across the devolution settlement in terms of issues and services that are provided by the Scottish Government, the Welsh Government and others, what consultation did the UK Government have with you about the Bill, and what consultation have they had with you during the process? I know that concerns have been raised.
Roseanna Cunningham: I am not aware of there being any formal consultation in advance of the introduction of the Bill. While I have had some correspondence backwards and forwards with the relevant Minister, there has not really been much in the way of a discussion and we are still trying to establish exactly how it would impact on us. We share a lot of the concerns that the Welsh Minister expressed to you.
Roseanna Cunningham: We are looking at that, because we feel that it ought to require an LCM—sorry, a legislative consent motion—given the extent of the interference in what are clearly devolved policy areas. We are looking closely at that, and, yes, it will involve taking some legal advice, but I am obviously not going to share it.
Q 229 James Cartlidge: On the constitutional point, given that industrial relations are reserved—they are a UK matter—is it not the case that any industrial legislation that comes out from any Government of any type and that potentially affects public services will have ramifications for devolved areas?
Roseanna Cunningham: You are reaching right into the operations of our Government and, in fact, into a significant policy area for us as well. You will have heard the title of my job, which is fair work, skills and training, and that ought to tell you something about the approach that we are trying to take in Scotland, throughout the work that we do. It principally means the way in which we behave as a devolved Administration in terms of our own employment, our relationships with our employees and the way in which we conduct our business. This is now directly reaching into, and attempting to change, the way in which we conduct our business.
Q 232 James Cartlidge: Okay, but the impact is on public services such as schools, which have been devolved. We accept that. But do you not have a concern, therefore, in relation to schools? Admittedly the statistics I have are for England and I am sorry about that, but we have had school closures in England on ballots with relatively small turnouts, such as 25%. Would that be of concern to you?
Roseanna Cunningham: I cannot speak to the industrial relations record that exists in England. I can speak only to the industrial relations record that exists in Scotland, and that is not happening in Scotland. In fact, we have a better industrial relations record here than in any other part of the United Kingdom, with the lowest number of days lost to industrial disputes. I would argue that that is the way we conduct our business here, and have done since 2007. The proof of the pudding is in the eating. What we are concerned about is the negative impact that this Bill will have on relationships in Scotland, in an area where we are making a far better impact than there appears to be south of the border.
Q 233 Chris Stephens: I will ask you a question first from the STUC point of view. Can you outline for the Committee what discussions the STUC has had with the Scotland Office on the Trade Union Bill? Do you have specific concerns in relation to check-off and facility time?
Grahame Smith: Perhaps I should introduce myself, given that Members may not know who I am. I am the general secretary of the Scottish TUC. I have had a meeting with the Under-Secretary of State at the Scotland Office to discuss a variety of things, among which was the Trade Union Bill.
Roseanna Cunningham: That does not change my position though. My position is that in an ideal world, they would be devolved. One reason why I am arguing for that is because, quite apart from anything else, there is a different relationship in Scotland. To have our relationship adversely affected by what is going through the Westminster Parliament is unfortunate to say the least.
Roseanna Cunningham: The fact is that you are choosing not to listen to what I have to say about the different relationship within Scotland, in terms of industrial relations, and why, in our view, it would be preferable if this Bill simply did not apply to Scotland.
Grahame Smith: The position of the Scottish TUC on industrial relations and the major employment protections is that they should be devolved to the Scottish Parliament. We believe that that would fulfil the pledge that was given in the so-called extensive devolution agreement, or devolution settlement. Given the major powers to be devolved to Scotland under the Smith commission proposals, including powers over employability, various tax powers and other powers that impact on economic development, it would make sense, in our
Grahame Smith: We are concerned about the Bill in its entirety. First, we are concerned about the lack of scrutiny by Parliament over the arrangements for check-off. It seems to me unacceptable and, in fact, pretty dangerous and damaging that Ministers in Westminster can, for example, determine whether check-off arrangements apply to public services in Scotland. In many respects these are contractual matters that are agreed between unions and employers in the public services in Scotland.
Check-off and facility time arrangements are an investment made by public service employers in stable and effective industrial relations. They contribute towards the provision of quality public services and stable relations between employers and unions. Any proposal to remove check-off arrangements or reduce the amount of facility time—that is, time that workplace reps can spend representing their members, working constructively with public service employers to address the range of challenges faced by public service employers and workers in Scotland—seems to me to be not only wrong-headed but, as I said earlier, particularly damaging and against the spirit not only of devolution in Scotland and Wales but decentralisation in England. To require local authorities to abandon check-off arrangements is certainly not consistent with the devolution of power to a local level to allow local authorities to be responsive to the needs of their local communities, including their local workforces.
Q 239 Rishi Sunak: Thank you both for your time. You spoke earlier about the good state of industrial relations in Scotland. With that backdrop, if a national strike in Scotland was called with only 20% turnout and a ballot that was two years out of date, would you consider that fair to the ordinary families up and down the country trying to get their kids to school or to get to work?
Roseanna Cunningham: The point I am making is that the situation in Scotland is such that I would be pretty close to being able to say that we would not allow it to get to that position in the first place. Reaching that position would be a catastrophic failure. We should be ensuring through all the practices—including things such as check-off and facility time—that the proper time is afforded to ensure that the relationship between employer and employee and trade union works effectively so that you do not get into that position.
Grahame Smith: The proposals for facility time and check-off raise the possibility of unfortunate conflict and disagreement in our public services. I would simply point to the statement that was made by the Conservative councillor who is the HR spokesperson for the Convention
On whether industrial action is legitimate, if a ballot is a measure of legitimacy, I suggest that a number of councillors and Members of the European Parliament would not pass that legitimacy test. On whether a ballot indicates a significant level of support, unions take into account not only the outcome of the ballot, including the majority or the turnout, but union workplace reps know the views of their local members and the feeling of the workforce. A union would not call a strike if it was not confident of the support of the workforce.
On disruption in public services, when I talk to our members, not only are there those who work in public services, but our members are users of public services. Their concerns about the problems in public services are not about strike action. There are very few strikes in public services across the UK and very few in Scotland. They are concerned about underfunding and the lack of investment in staff and staff training, and about the impact of austerity and the pressure that that has on staff who deliver quality public services. That is much more of an issue that needs to be addressed rather than the proposals in the Bill that, frankly, have no evidence base and are questionable in terms of their democratic legitimacy.
Q 240 Ian Mearns: I wonder whether I could also pose the question about check-off and facility time to the Minister. Do you expect the Government’s proposals to apply to the public sector in Scotland? Do you believe that there are any mutually beneficial elements coming from check-off and facility time for both employees and employers in the public sector in Scotland?
Roseanna Cunningham: We value both. We consider that the investment in facility time pays you back in terms of the handling of issues and problems before they get to become major disputes. That is an extremely important aspect of the relationship that we have within the public sector in Scotland. On check-off, we can understand what the problem—[ Interruption. ]
Roseanna Cunningham: Pretty much. There was a phrase at the end that I suspect you did not hear, but I am fairly sure that the members of your Committee understand the position that we are taking on both check-off and facility time. We do not see the need for—
Q 241 Stephen Doughty: I have one last question for the Minister. Looking at clause 9, the provisions on picketing have implications for police officers and police involvement in picketing. Policing is another area that is wholly devolved to Scotland. What conversations have you had with your ministerial colleagues and representatives of the police in Scotland about the provisions, including whether they put the police in an invidious position regarding involvement in industrial disputes?
Roseanna Cunningham: I certainly think that this is a situation that the police do not want to find themselves in. I have had some brief conversations with relevant colleagues. One of our difficulties is with the way that the Bill is drafted. So much is so uncertain at this point that we are almost having to wait and see until regulations appear to discover the practical outcomes of some of what is being vaguely suggested. We have some concern that what is being proposed will be simply exacerbate the situation, rather than help to calm it down. I cannot repeat often enough that if this is fixing a problem, I do not know where that problem is. It is certainly not a problem in Scotland.
The Chair: Minister and Mr Smith, we are very grateful to you for sticking with us through all the difficulties that we had today. It has been extremely useful and we will send you up a copy of all the minutes that we put together about this session. Thank you.
Written evidence reported to the House