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I will now briefly explain some of the other main features of these draft regulations. They are made under Section 3 of the Employment Relations Act 1999, which provides a power to introduce regulations which would prohibit the blacklisting of trade unionists. In Regulation 3, a prohibited list-the name that the regulations give to a blacklist-is tightly defined. Such lists need to contain details of trade union members or activists, and, importantly, they must also be compiled with a view to being used to discriminate in recruitment or employment on the grounds of trade union membership and activities. I stress that.
We believe that very few lists which employers or others hold would meet those criteria. For example, when the draft regulations were debated in the other place, it was asked whether the list of individuals barred or restricted from teaching or otherwise working with children and vulnerable adults would be prohibited by the regulations. That is an important, legitimate list, which is held by the Department for Children, Schools and Families and utilised for vetting and security purposes. It is possible-indeed likely-that some trade union members will be on that list. However, it will be unaffected by the regulation because the DCSF list was clearly not compiled with the purpose of discriminating on grounds of trade union membership or activity.
In Regulation 4, we provide exceptions for certain activities involving blacklists. For example, it will permit whistleblowers and lawyers to access such lists in certain circumstances. Under the regulations, there are avenues for complaint to either the employment tribunal or the court. In the latter case, the courts can exercise important order-making powers which are unavailable to the tribunal.
As our impact assessment shows, the costs of complying with the regulations are very low. Businesses and individuals should not be involved in blacklisting because, in the main, it is already unlawful under existing law. Some businesses will incur some modest costs in familiarising themselves with the regulations and checking their current listing practices. The impact assessment concludes that small businesses are much less likely to need to check lists, in part because union membership is very low in such companies. Small businesses are therefore much less likely to hold lists of trade unionists, such as lists compiled to enable trade union members to pay their union subscriptions from their earnings at source.
We must send out a strong message to all those who feel that it is acceptable to act in that corrupt and deceitful manner. We know that the vast majority of employers do not use blacklists, and the regulations do not interfere with their normal vetting practices. The draft regulations are balanced, reasonable, and robust. They have been through two periods of consultation. They have been built to complement existing protections in the area, which are found in trade union and data protection law.
The regulations have been debated in the other place and accepted, and the Joint Committee on Statutory Instruments has raised no objection to them. I strongly believe that this new piece of legislation will bring to
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Lord De Mauley: My Lords, as my honourable friend Jonathan Djanogly made clear in the debate on these regulations in the other place on 8 February, the Conservative Party is absolutely opposed to discrimination against individuals, and discrimination on the grounds of trade union membership is no exception. In fact, it was under a Conservative Government that the Trade Union and Labour Relations (Consolidation) Act was enacted in 1992, Section 137 of which made it unlawful for employers to discriminate against individuals due to their membership of a trade union.
These regulations recognise that it is perfectly legitimate for employers to keep a list of union employees for a number of administrative reasons. However, they will increase the burden on employers because it will make it more difficult for those who hold such lists to know when their actions break the law. The same list could theoretically be kept by two employers and one could be in breach of the new regulations while the other is not. This uncertainty is likely to place further strain on the normal administrative practices of employers in dealing with workers, which necessarily involve compiling and keeping lists. There is also the risk that employers may be subject to unnecessary, perhaps vexatious, actions against them by employees for being in possession of such lists, which are, in fact, being used exclusively for legitimate purposes. For example, my honourable friend pointed out the legitimate need for an employer to know which employees are union members, so that negotiations can be had with the union on their behalf, and which are not union members and so need to be negotiated with directly. The end results of regulations such as these can only be to increase the number of wasteful employment tribunal claims.
It is already unlawful for employers to discriminate against individuals on the grounds of their trade union membership or activities. The final impact assessment on the regulations describes them as having,
Turning to the case of the Consulting Association, which inspired these new measures, it should be highlighted that the illegal actions were discovered not, of course, as a result of these regulations, because they were not in force, but as a result of the Information Commissioner's existing investigative powers under the Data Protection Act. The creation of lists in relation to trade union membership is treated as sensitive personal data and is therefore covered by the Data Protection Act, which provides comprehensive protections for data subjects and imposes duties on data processors. It did not require these regulations. It is therefore difficult to see that the way to work towards solving this issue is through yet more regulation. Why would it not be more appropriate, if, indeed, it is necessary, to make improvements to the Data Protection Act to enable it to be put to more effective use in this area?
The Minister acknowledged that in his introductory remarks. The real problem is the covert nature of the blacklisting that takes place, which, unless I am mistaken, the regulations do not address. Legislation is already in force to tackle discrimination once it is discovered. The facts of the Consulting Association case suggest that the wrongdoers were not ignorant of the law but were keen to conceal their activities. The final impact assessment states that the objective of these regulations is to,
Clearly, targeted measures would be far more useful than signals. The regulations do not create any new investigative powers, and further cases are likely to be discovered only by enforcement of the Data Protection Act. The burden on businesses is real, but currently unquantifiable, so it is completely unclear how accurately the costs to business have been measured by the Government. In July 2009, the initial impact assessment predicted costs of £526,000, but in the January 2010 impact assessment that figure was reduced by more than 50 per cent to £285,000.
The costs and burdens to businesses are twofold. First, there are the costs of them familiarising themselves with these new regulations and implementing changes. Secondly, there are costs associated with failures in compliance or in dealing with legal actions by employees where there have been alleged failures. The January 2010 impact assessment recognises but does not provide a figure for the potential additional costs where there has not or may not have been full compliance by businesses. It is estimated that 3,200 public and private sector employers will be impacted by these regulations.
It is an unfortunate time to lay this additional regulatory burden on businesses, particularly when it is demonstrably unnecessary. The fact that the Government initially postponed indefinitely implementation of these regulations suggests that they do not add anything to existing legislation. The CBI has described the measures as,
A further disturbing issue is the perfunctory response to feedback from the consultation process. The Government failed to address trade union concerns about the scope of these new regulations. The Union of Construction, Allied Trades and Technicians feels that there is inadequate protection under the new regulations.
In conclusion, we need a full explanation from the Minister if we are not to conclude that this is an example of yet more unnecessary, burdensome red tape at a time when the focus of all businesses should be on getting on with business without distraction from more expensive and unjustified regulation.
Lord Lee of Trafford: My Lords, I rise from these Benches to welcome the Employment Relations Act 1999 (Blacklists) Regulations 2010. The order has taken 11 years to be brought forward and we welcome the fact that the Government have decided to properly legislate on the issue only once clear evidence of its
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We would like to probe the Government on their plans for continued monitoring of this area of trade union law and on what direct consultations they held before bringing these regulations forward. We are well aware of the Consulting Association case referred to earlier, which has effectively required that these regulations are brought into force. What consultations did the Government hold before and after this case with trade unions and other employment-related bodies on these issues? What plans are there to continue to monitor their impact? What information and communication are the Government planning to make employers as a whole aware of the existence of these regulations?
Lord Young of Norwood Green: My Lords, in response to the comments made by the noble Lord, Lord de Mauley, it is important that we explore the genuine concerns that he raised. In relation to legitimate lists, lists in themselves do not present a problem. It is the use to which lists are put and the abstracting of names from those lists, as we saw in the case that was put before us. It would take an employer making a decision to go down this road before there would be any danger of a prosecution under this Act.
The noble Lord, Lord de Mauley, asked why we do not amend the Data Protection Act. The problem is that it would involve changing primary legislation. We have a specific regulation-making power to prohibit blacklisting. It therefore makes sense to use this power rather than amend an Act which deals with many other matters relating to data protection. He said that there were not enough targeted measures and only signals for employers. The regulations make it clear that not only is blacklisting illegal, but set out remedies for the victims. The CBI said that this is a "knee-jerk reaction". As the noble Lord, Lord Lee of Trafford, pointed out, we waited until we saw whether there was any need for regulations, and indeed it was nearly 11 years before a case emerged. Quite frankly, we hoped that there would not be any need for them, but it was obvious from this case that there was such a need.
We do not believe that we have underestimated the impact assessment. We think that we have it right and that for small firms there will be little or no effect and, for larger firms, little other than familiarising themselves with the provisions. We think that that is absolutely right. Good employers have nothing to fear in these regulations and they will not need to adjust their behaviour. The covert listing of personal information is already unlawful under the Data Protection Act. We have prepared guidance on the regulations for the direct.gov and BIS Business Link websites which will be posted when they come into force; indeed the draft guidance has been available on the BIS website since 12 January. The noble Lord asked what consultations had taken place. As I said, there were two rounds of consultation, the first taking place between February and May 2003 and the second between July and August 2009. A further question was put in relation to monitoring. I feel sure that we will need to monitor the impact and
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In conclusion, we firmly believe that these draft regulations are forceful enough to put a stop to this outdated practice once and for all. Some trade unions have indeed asked us to go further and make blacklisting a criminal offence, but it is worth remembering that these regulations do not exist in isolation. They operate in the context of closely related protections concerned with trade union rights and the use of personal data. It will be their combined effects which will curb blacklisting. We believe that the draft regulations are targeted, balanced and proportionate. I stress that they should not affect normal listing activity by employers so that fair and open vetting procedures can continue as before. Most businesses will be unaffected by the regulations and, as I have said, we estimate that the compliance costs will be low.
The Parliamentary Under-Secretary of State, Department for Communities and Local Government & Department for Work and Pensions (Lord McKenzie of Luton): My Lords, the regulations laid before the House on 5 January and approved by the House of Commons on 10 February set out a fee structure for new categories of planning application developed to introduce a greater degree of flexibility into the planning system and assist householders and developers as the country moves towards economic recovery. A new application type gives local authorities the power to extend the life of existing planning permissions that are due to expire for a further limited period without the need for a full, new planning application. In addition, the Government have also introduced a formal system to allow applicants to agree non-material amendments to existing planning permissions with the relevant local planning authority, similarly avoiding the need to submit a full new planning application.
These new legislative provisions were laid before Parliament on 8 September 2009 and came into force on 1 October 2009. If approved by noble Lords today, the associated change to the fee regulations will be brought into effect tomorrow.
The regulations also establish a lower fee cap specifically for planning applications falling within category 9(b) of Part 2 of Schedule 1 of the regulations, reducing the cap from £250,000 to £1,690.
The principle underlying the planning fee regime is that would-be developers, rather than the council tax payer, should meet the bulk of the costs incurred by local planning authorities in considering any application submitted. The Government have worked closely with local authorities, developers and other interested parties in establishing a fee level that reflects this driving principle of cost recovery in the planning fees system.
In the case of an application submitted to extend the life of an existing planning permission, the Government propose that, if the applicant is a householder, the relevant fee will be £50; if the application is for major development, it will be £500; and in any other case, it will be £170. In the case of an application for non-material changes to a planning permission, if the applicant is a householder, the relevant fee will be £25; in any other case, it will be £170.
The fee levels proposed reflect the outcome of the government consultation on this issue undertaken between 18 June and 13 August 2009, where a flat fee of £170 was proposed for extensions to planning permissions and for non-material amendments, with the exception of non-material amendments to householder applications, for which a flat fee of £25 was proposed.
In response to the consultation, a number of local authorities noted concern that the £170 fee for extending planning permissions would not cover the costs of processing larger applications. In response, the Government undertook a further consultation exercise involving earlier consultation respondents and an expert panel on planning fees. They proposed a higher fee of £500 for all major applications, and a lower fee of £50 for a householder application. These fee levels attracted support from a significant majority of respondents and are the levels that we now propose to take forward.
The reason for these applications having a lower fee than would be paid for a new permission is that there is less work for the local planning authority due to the extent to which material considerations have changed the original permission. The fees proposed will enable the local planning authority to undertake the necessary work on a cost-recovery basis.
Finally, the regulations also establish a lower fee cap specifically for planning applications falling within category 9(b) of Part 2 of Schedule 1 of the regulations, reducing the cap, as I said earlier, from £250,000 to £1,690. This cap was raised in error to the £250,000 maximum in the last revision of the regulations in 2008, when it should have been increased in line with the overall fee increase. The lower cap on this category was to ensure that schemes such as habitat creation were not subjected to an unrealistic fee as a result of the area of land that they cover. The amendment reinstates that lower cap and corrects the error made in the 2008 regulations. I commend the regulations to the House. I beg to move.
Lord Bates: My Lords, I shall rise briefly on these regulations; I do not think that they are particularly controversial. In fact, many elements of them are welcome. I thank the Minister for the way in which he set out the rationale behind the regulations. It is notable that the Government acknowledge that there was an error in raising the threshold in the first place. It is always encouraging to hear that kind of admission and a desire to correct the error. Also encouraging is the fact that there seemed to be a meaningful consultation exercise. As the Minister said, local planning authorities' representations were taken into account as a result of that and changes were made to the proposals. The way in which the exercise has been conducted is encouraging also because it is likely to save applicants substantial amounts of money in the planning process. The overall saving is estimated in the impact assessment to be between £4 million and £14 million per annum-although that seems a pretty broad range -with administrative costs for business being reduced by between £5 million and £18 million per annum. Again, one has to applaud all that.
These matters are important because the consultation document shows a worrying trend which I hope the Minister will comment on when he responds-if he can; he is not to worry if it is not possible. The schematic shows that the number of applications which have progressed has declined from a high of 65 per cent in 2003-04 to half that in the third quarter of 2008. We do not have later figures but it would be interesting to see them. In 2007-08, over 1,000 major applications were progressed; that number has fallen to fewer than 200. Those figures reveal the true impact of this. If it is possible for the Minister to update those figures, it would be extremely welcome.
While it is very good news for business that the cost of applications is being reduced, there are fewer applications. The fee income from applications is an important revenue stream for local government. What consideration has been given to the impact of the reduction in fee income on pressures that may occur elsewhere in the budgets of local authorities?
Lord Lee of Trafford: My Lords, the Liberal Democrats welcome flexibility for local authorities given the difficult economic environment and the need to lay the groundwork for future recovery. Flexibility will be needed as the recovery proceeds at different speeds in different areas. A working planning system can aid this.
On the £250,000 maximum limit which the regulations will revise back to £1,690, I understand that this was a mistake made under the 2008 regulations, the intention of which was to increase the cap by 25 per cent. Is it a change in policy or was it indeed a mistake that we now have to rectify? From what the Minister said, we can be clear that it was a mistake.
As the noble Lord speaking for the Official Opposition said, councils have suffered a loss in fee income during the downturn, with fewer applications made. I repeat his question: what measures have the Government taken to help local authorities with this? The concern is that if the fee income falls substantially as a result of any amendments, there might be additional costs for local authorities. Further, what assessment have the
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Lord McKenzie of Luton: My Lords, I am grateful to both noble Lords for their support for these regulations. The noble Lord, Lord Bates, said it was good to see the Government put their hand up when an error had been made and to confirm that it was an error. I can confirm also for the noble Lord, Lord Lee, that it is not a change of policy that we are dealing with here. A number of amendments were made to the schedule to increase the cap; this one was included in error. We understand that not too many people have been affected by it in the interim, but obviously now is the first opportunity we have had to correct it and to put matters right.
The noble Lord, Lord Bates, also acknowledged that we had a meaningful consultation and he is right to say that it changed our original proposals on the fee structure. He referred to the fact that this would lead to administrative and cost savings for business.
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