Nowadays, some unions can be extremely large organisations. For example, as many noble Lords opposite will know, UNISON has 1.3 million members and Unite has 1.5 million. To put that in context, the NHS has around 1.7 million employees. Record-keeping for such large organisations is likely to be complex, and maintenance will need to be ongoing to ensure that the register is up to date, particularly given the high level of reported churn in union membership. Equally, where a union consists of many individual branches with individually held membership information, regular and diligent maintenance of the membership register as a

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whole will be critical. The noble Lord, Lord Monks, recognised that. We acknowledge that these lists cannot and will not necessarily be 100% accurate. In addition, the larger the organisation, the more probable that communication between the union and its members relies on being written rather than oral. Branch secretaries are unlikely to know all their members and may not even have met some of them. It is therefore appropriate that there is independent assurance for larger unions.

This amendment could also have the unintended consequence of placing additional burdens on larger unions. In defining the independent assurance, we have focused on the assurer awarding the membership audit certificate to larger unions on the basis that they have adequate systems in place to allow them to comply with Section 24. That is because we considered it unduly burdensome and unreasonable to expect the assurance to be an audit of every individual record. The effect of the amendment, however, would be to require these unions to give assurance that they have complied with Section 24 to the best of the union officer’s knowledge and belief. That means that the officer who signs the certificate essentially guarantees, to the best of their knowledge, that the register is accurate and up to date—again, so far as is reasonably practicable. We believe that this could be much more onerous for larger unions than what the Government propose. The annual assurance of unions’ compliance with this duty will demonstrate to members, employers and the public that unions are diligent in their maintenance of such complex records. It will also provide greater confidence that union activity is accountable to the membership.

Lord Lea of Crondall: Will the Minister address the point made by many of us about the report of the business advisory committee, which reached the conclusion that the so-called cost-benefit analysis carried out by the department and the impact assessment are not fit for purpose?

Viscount Younger of Leckie: I was about to attempt to answer the many questions that were put to me. However, before I come to answer the noble Lord’s question, I wanted to say that the noble Lords, Lord Monks and Lord Beecham, and the noble Baroness, Lady Turner of Camden, basically said that they considered Part 3 to be a politically motivated attack on the unions. I think the noble Lord, Lord Monks, used the expression “vindictive attack”. Perhaps I should not be surprised at their reactions, as we are perhaps being accused of placing our tanks on their lawn. That is just not the case; if anything, it may be only the front of the front wheels. However, this is not intended to make it harder for trade unions to operate. They are membership organisations, and as such have a responsibility to their members to keep their register of members’ names and addresses accurate and up to date so far as is reasonably practical. That general principle is already a statutory obligation, and it is right that the Government should try to ensure that these requirements on unions to fulfil this responsibility are adequate. As I said earlier, trade unions are vital participants in the economy. They work with employers to maximise employee engagement and deliver practical solutions to workplace issues. This is why we currently

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engage with trade unions on key policy areas, much more widely than we are talking about today, such as employment rights, skills and manufacturing strategy. The Business Secretary regularly meets the general secretary of the Trades Union Congress to discuss current policy matters.

6 pm

I would like to address the question raised by the noble Lord, Lord Lea of Crondall, and by the noble Lords, Lord Monks and Lord Whitty. That concerns the RPC report on the BIS impact assessment and the shortfalls and the evidence base, as it was put to me. I am aware that the RPC has argued that we have underestimated costs, particularly with regard to changing union rules. We have received no information on this from unions, despite seeking their estimates on impact. We would be pleased to take any figures into account should they wish to supply them, but we anticipate that unions will have routine written communications with members and also an annual conference and that should allow them to include those routine activities to take steps to make the necessary changes. Perhaps I can reassure noble Lords that we will continue to work with the RPC to see how we can improve the evidence base further and we will take into account any further data that unions and others can supply and choose to supply.

The noble Lord, Lord Whitty, raised the issue of whether there would be any change to the definition of the phrase “so far as is reasonably practical”. The test for unions that they maintain a membership register that is up to date and accurate so far as is reasonably practical has actually existed since 1984 and has been interpreted by the certification officer in decisions made under Section 25 of the Trade Union and Labour Relations Act. We do not intend statutorily to define it further. It is important that the legislator recognises that the duty takes account of the fact that unions of different sizes and types compile and maintain their membership data in individual and varying ways. At the moment, we anticipate that an assurer will want to check how the union collects data from new joiners, how they remind members about keeping records up to date, the ease with which members can notify changes and how quickly changes are made. We would also expect that an assurer would be interested in the data cleansing processes that larger unions use for electronic databases.

The noble Lord, Lord Monks, raised the issue of the cost to unions. I would like to say a word or two about costs. He said that they would add considerable burdens on the unions. We have assessed the average annual cost as being 6p per union member. I think the noble Lord would have read that earlier. That equates to an average of half a penny a month. However, union monthly subscriptions vary but typically they range from £1 per month to something around £35 a month. We have sought to take an approach which is proportionate and seeks to minimise the burdens on unions.

Lord Monks: I thank the Minister for giving way. Is it not quite incredulous to use the cost in that way, breaking it down person by person in that way? We are

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talking about half a million pounds to be spent on a purpose which he believes gives confidence, assurance and so on but, if there is no real problem in the first place, the whole thing is built on a piece of tissue paper. That 6p becomes even more important to people like me. It is not so much that you have your tanks on our lawn, you have your hand in our pocket.

Viscount Younger of Leckie: These are the figures that I have presented, and it is fairly natural to break it down on a per-head basis. I would like to focus on costs. As set out in the impact assessment, I expect the cost to the public purse of implementing the provisions to be around £150,000. The additional responsibilities of the certification officer will mean hiring two to three extra staff members in his office. Some expenses may also be incurred if a complex investigation has to be undertaken, although it is likely that those investigations will be rare. We believe that the changes we are making are relatively modest. The new powers for the certification officer are largely consistent with activities that he undertakes at present. The Government have no plans to make wider changes to the role of the certification officer.

The noble Lord, Lord Monks, raised the issue of, as he put it, state intrusion into unions. That goes back to the first question that I answered for other noble Lords. The Data Protection Act will apply to the certification officer, his inspectors or assurers and they will be required to use any personal data, including data on union members, consistent with the protections that it contains. The Information Commissioner has powers to enforce the data protection principles and can impose substantial fines for some breaches. In addition, there are confidentiality obligations contained in the Bill so that an inspector or assurer can use or disclose information only if they do so consistently with the exercise of functions in relation to the membership register or criminal investigation or proceedings or where consent has been given.

I would like to address two further questions. The noble Lord, Lord Monks, raised the issue of a perceived breach of Articles 8 and 11 of the ECHR and the report of the Political and Constitutional Reform Committee, which I believe I have answered already. The Government have responded to the committee’s report, explaining that these do not breach rights to privacy or freedom of association. That is because there are legal safeguards in place already. The Data Protection Act will continue to apply and the Bill introduces new safeguards as well.

The noble Baroness, Lady Donaghy, challenged the length of consultation. Perhaps I may address this directly. BIS published a discussion paper which received 42 written responses from a range of groups, including trade unions, legal firms, businesses and charities. The Deputy Prime Minister, BIS Ministers and BIS officials have discussed the proposals with the TUC at various points throughout the progress of the Bill to date. The evidence base in the impact assessment is based on what unions have told us and we will continue to listen. The Minister for employment relations has already said in the other place that the Government will consult further on the role of the assurer; for example, we are committed to allowing unions flexibility

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in the implementation of these new measures while supporting a smooth transition. We are also committed, as I said earlier, to continuing to work with the RPC as well on the evidence base for the impact assessment.

I ask the noble Lord to withdraw his amendment and beg to move that Clause 36 stand part of the Bill.

Lord Monks: My Lords, I am grateful to those who have taken part in what has been a wide-ranging debate, at least from this side of the House, which I suppose is only to be expected on this kind of subject. I ask fair-minded Members of the House, of which there are many on all sides, to consider this measure. The case for it is extremely flimsy. Are there not better things for the people from the department and the Minister to be doing? In a period of economic difficulty, the business department is messing about getting extra confidence and extra assurance about union membership records when, over many years, the complaints have been negligible. The existing requirements, which have been put in place during and since Mrs Thatcher’s time, have proved robust and effective. In a sense we are adding something on. As I mentioned before, it is almost like a rite of passage for every Conservative Minister in this place to have at least one kick at the trade union movement. I think that is very much what is happening now.

On this side of the House, we do not intend to press the amendments today but we are giving notice that, after a pause which will take place to enable Part 2 to catch up with Part 3, we will be making the point again on Report. It is an absolute waste of time.

Amendment 118A withdrawn.

Amendments 118B and 118C not moved.

Clause 36 agreed.

Clause 37: Duty to appoint an assurer etc

Amendment 118D not moved.

Amendment 118E

Moved by Lord Monks

118E: Clause 37, page 40, line 9, at end insert—

“(c) to have a duty of confidentiality to the trade union and its members; and

(d) to abide at all times by the trade union’s obligations under the Data Protection Act 1998 to protect the information of members”

Lord Monks: I shall speak also to the other amendments in this group. They deal with confidentiality and administrative complexity, as well as some points concerning the position of the assurer. Incidentally, I rather liked the earlier comment by my noble friend Lord Stevenson that this provision amounts to job creation for chartered accountants, of whom he is one, but I believe that it will very much benefit a small part of the population.

I shall deal quickly with each of the amendments. The Bill has been much criticised by civil liberties organisations for allowing potentially significant breaches of data protection law. A legal opinion by Michael

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Ford QC, acting for UNISON, points out that under the European Charter of Fundamental Rights only a substantial public interest would justify the disclosure of this membership information. As we have said before—I shall not labour the point—where is the substantial justification in this case?

Nor is it absolutely clear that the Bill contains any suitable safeguards to protect sensitive personal data. An inspector would owe a duty of confidentiality to the certification officer but not, it seems, to the union or its members, and no duty of confidentiality is placed squarely on the shoulders of the certification officer. We are advised by legal advisers that the Bill may well not be permissible under the data protection directive, and Amendment 118E seeks to remedy that.

Amendment 118F seeks to ease the requirements on the union to appoint or terminate the appointment of the assurer and to put it in line with the terms under which scrutineers are employed to oversee union elections and ballots. Currently, the Bill tells unions to alter their rules but, notwithstanding that, the Bill’s provisions override the rules. An assurer could be removed only by resolution of a general meeting or conference. Not too many people have that requirement on them as far as auditors are concerned. It is not necessary to call a special shareholders’ meeting to get rid of KPMG or Deloitte or whoever, but there would be a requirement on a union in this area if this part of the Bill went through.

Amendment 118G would improve a union’s ability to remove an assurer who had breached the confidentiality of the union or breached certain other requirements. It stresses that the obligation is to the union and its members, and there is not necessarily a general airy-fairy commitment to give confidence to the wider world. As it stands, this provision would be extremely intrusive to the union’s right to keep its information confidential. As others have said, some of that information could be quite explosive in certain industries with more unscrupulous employers.

Amendment 118H would qualify the requirement for a system to be “satisfactory” by adding,

“so far as is reasonably practicable”,

which is very much in line with Section 24 of the Trade Union and Labour Relations Act.

Amendment 118J is rather important for employers, and I am surprised that some of them have not made more noise about this. The check-off system operates when the employer deducts the union’s subscription from the employee’s pay and, probably on a quarterly basis, sends the payment and an administrative charge off to the union. If the assurer finds any inaccuracies in some of the information and data that a union is holding, they may well be traceable to the employer—they may well be traceable to the payroll system or the way it is administered. In a sense, under Amendment 118J, we are asking, “What about the employer having to comply with investigations in this area launched by the assurer or the certification officer or one of his proposed inspectors?”. Amendment 118L would follow that up. It would provide the assurer with the ability to seek information from an employer for the same purpose.

Amendment 118K would put the obligation regarding record-keeping squarely where it should be if this provision goes through, and that is on a union nationally,

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not on the officer in charge of data handling in the union. It is not fair to put the obligation on a branch secretary, who may be a lay person. It is not fair to put it on the East Anglia regional committee, for example. The responsibility for good record-keeping should be very much on the national office, and I ask the Minister to look at that.

6.15 pm

Amendment 118M stresses the obligations under the Data Protection Act, and this is also relevant to Article 11 of the European convention.

Amendment 118N refers to the test of reasonable steps that need to be taken by an assurer in the current draft of the Bill. How about raising the bar a bit and inserting the rather stronger requirement of “necessary” rather than “reasonable” steps? It is a very important matter that he or she is handling.

The purpose of Amendment 118P is to reduce the scope for the assurer to disclose information where a member is involved in criminal activity or some kind of corruption. We are trying to limit the scope of the assurer to make information available on a wider basis. At the moment, there are too many opportunities for an assurer to disclose information and perhaps data protection requirements, and thus breach the obligation to individual union members.

Those are the key points that I wish to put before the Minister. I beg to move.

Lord Whitty: My Lords, my noble friend Lord Monks has made a sophisticated case to the Government for making this whole clause and the invention of the assurer more palatable, or at least more workable. He has had to do so in a very complicated way because of the nature of the proposition. My opposition and that of my noble friend Lord Lea to the clause standing part is a more straightforward proposition: we are basically seeking to delete the clause.

We still have not had a proper explanation of why there should be an assurer. Incidentally, I need to apologise to the Committee and to Hansard: on occasion in the previous debate, I referred to an “assessor” rather than an “assurer”. I also apologise to the Minister. It was almost certainly down to my writing. The term “assurer” has a nice touch about it; it is as though the man from the Pru is coming round to collect your life assurance every now and again. However, it is not quite like that. What qualifications and what legal requirements does the assurer have to have? He or she is going to be employed by the union but approved by the state. This person may well be somebody with auditing qualifications but he or she is not an auditor, an accountant, a lawyer or a scrutineer in the sense of the ballot scrutineer, to which my noble friend referred. The post is an entirely new invention.

I go back to my earlier point. Why do we need this new invention? If the Government’s intention is to tighten things up, why do they not do that? Can we not rationally look at a proposition saying that the certification officer should have more powers or that the requirements on the union should be clearer or more stringent? However, that is not what the Government have proposed. They have simply proposed this intermediary, which is very strange.

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I do not know how the general public will take to this. What is the assurer? It sounds to me like a third-rate television series: “The Assurer—Licensed to Check Membership Records”. Even more sinisterly, as in Nineteen Eighty-Four, it could be the kind of person who meticulously took notes of the proceedings of a committee in the old Soviet Union. He sat in the corner and nobody quite knew who he was, but you knew he was reporting on you, and you knew he was reporting to the Central Committee. Such a role is not of the organisation; it is not of the state; and it is not of a recognised profession; it is a new invention. To do exactly what? I do not think that, in all their interventions so far, or in what they have done with their advisers, the Government have come up with a clear definition of what this person is to do.

For the smaller unions—those with fewer than 10,000 members—the requirements in Clause 36 relate to an audit certificate. That is slightly more understandable. It has to be signed off by senior officers of the union. That is a procedure that many organisations know about. They have to bring in external auditors to check it and, if it is complicated, they have on occasion to ensure that their lawyers have seen it.

However, this new profession is not known to science or to society—or, so far as I am aware, is it known to legislation. If the Minister can point to a precedent I would be grateful, but it is not in any part of society that I am aware of, or in any part that bears any relationship to the context in which trade unions and employers operate.

If I were the Government, I would think that the best thing would be to delete this whole new proposition and instead get around to telling us clearly what this part of the Bill is supposed to do. Then we could have a rational debate. We might still disagree, but at least we would know what we were talking about. The main proposition here is to introduce into a very delicate and sensitive area—the issues of human rights and data protection have already been touched on, and will be again—an entity and a role that is unknown to all the players and unknown to the courts. If the Government were sensible, they would approach this in a cleaner way. They would make a proposition as to how they want unions to change their behaviour and what standards they want them to meet, and we would be able to see whether those were reasonable, rather than putting things in the hands of an entirely new concoction.

I therefore propose that Clause 37 should not stand part of the Bill. I hope that by the time we have completed our consideration of the Bill the Government will either have deleted it entirely or put something much simpler and more straightforward in its place.

Baroness Turner of Camden (Lab): My Lords, I support the amendment moved by my noble friend. One point struck me particularly, from my recollection of my own work as a full-time official in connection with recruiting in areas where there was no trade union membership. I am referring to people who were new to the trade union movement. The lack of confidentiality implied in this part of the Bill would be a deterrent to recruitment. Obviously, if you are trying to recruit people who have never been in a union

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before and are not organised, the last thing they want is for their details to be made available to anybody. They want to keep things close to themselves until they have recognition. Obviously that is important to them. A number of us have raised the issue of confidentiality, which is threatened unless this provision is either removed entirely or substantially amended.

I do not see why we should have to vote for yet another official—this so-called assurer. Where is he to come from? What sort of background is he to have? What kind of voice will the ordinary members have in relation to this individual? We do not want this new individual. We do not think the role is necessary, and I personally oppose this clause altogether—although the amendments tabled by my noble friends would undermine to some extent the opposition that some of us have on grounds of confidentiality. This is very important to new members, particularly those who have not been in a union before and who need some assurance of confidentiality if they are to remain with the union and support it as it struggles for membership and recognition. I therefore completely support my noble friends in their opposition to this part of the Bill.

Lord Lea of Crondall: My Lords, I add my support for the amendment. Orwell has been mentioned, and I have mentioned Kafka—but now I shall give a more homely sort of picture. One of the children says, “Mummy, what does Daddy actually do?” and Mummy replies, “Well, he’s an assurer.” I think that after that Mummy might have a bit of difficulty and wonder whether she had actually answered the question.

Let me apply the provision to electoral rolls. This is one of those phantom tasks on which you could expend the whole resources of the Central Committee of the Chinese Communist Party and still not solve the problem. The Minister has said that there is a problem with churning, and people moving house and so on, so we are to have more of the Central Committee investigatory branch investigating and then doing something about it. I do not know what it would be able to do if it is true that the rationale for the action, and the analysis of why there is a problem, is the changing nature of the economy and the churning of people in the trade unions. When would you have won the game? If that is the analysis you can never win the game. To use a different metaphor, you can always move the goalposts.

I hope that the Cross-Benchers in their massed ranks, between now and Christmas or a bit after, will be able to decide whether we are right or whether the Government are right in this way of stating, or inventing, a problem and begging the question to which there is not an answer as there cannot be an answer to the problem as stated.

Lord Tyler (LD): My Lords, I have to confess that my experience of the unions is obviously much less extensive than that of opposition Members. I suspect that it is also out of date and rather specialised. I was a member of the National Union of Journalists for a decade or so. I never aspired to be an officer of the chapel, although I attended regularly, so my contribution

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to our consideration of this part of the Bill will have to be very limited. But it is genuine. I am really interested and concerned to ensure that we get this right.

I am listening very carefully to the debate on part 3—not least the two extremely important clauses that we are now looking at—and I want to speak specifically on whether Clause 37 should stand part of the Bill. I believe that we should retain it until we have seen something better, and I am not yet persuaded by the amendments. From what noble Lords on the other side of the House have said, I am not clear whether their principal concern is with the direction of Part 3 or the detail. Is it with the principle or is it with the practice? Different Members of your Lordships’ House have touched on both. Is it the intention or is it the impact? It may be both, but it is not entirely clear to me yet whether they think that the problem does not exist or that it is not being addressed in an appropriate way. The noble Lords, Lord Monks and Lord Whitty, said that accuracy was a problem. So it is not a problem that does not exist. There is a problem; the question is whether we have the right remedy for it.

I am not yet entirely clear, either, why those opposite seem to have so much fear of what is proposed. It seems to be an effective process for auditing membership records annually and having them independently signed off. That, surely, is healthy. Is there a problem with it? Surely it is not a burden for the smaller unions either. I am not quite sure where the National Union of Journalists is these days in the league table of membership; I suspect that it is not very big. I do not think that 10,000 members is an unreasonable cut-off point in Clause 37 for the smaller members not to have to self-certificate.

6.30 pm

It seems to be not only a reasonable, moderate approach with benefits for ensuring that the electorate for ballots and other union processes are accurate, but a measure with potential future constitutional benefits. As other Members of your Lordships’ House may recall, I recently published a draft Bill with input from a number of parliamentarians at both ends of the building, and from across parties, to reform comprehensively the whole issue of party funding, including a donation cap. Labour Members have said to me regularly and consistently that for such a cap to work it would have to exclude affiliation fees from individual trade union members. If that is the case, surely it will be essential that everyone can have confidence in exactly how many of them there are before we can know that they have consented to pay into a political fund and that they want their money to go to the Labour Party.

That, of course, is not the purpose of this clause or this part of the Bill, since the Government are not yet committed to radical reform of party funding. But since the cross-party talks on that issue concluded in June, there have been some important signs of real progress that could make real development possible. After all, Mr Ed Miliband, having had his emissaries refuse to budge on the relationship with unions during the funding talks, has now made it clear that he does want to reform that relationship. Noble Lords will recall that he courageously made an important statement to that effect in July. He said:

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“I do want any individual to be paying money to the Labour Party in affiliation fees unless they have deliberately chosen to do so. Individual Trade Union members should choose to join Labour through the affiliation fee, not be automatically affiliated. In the twenty-first century it just doesn’t make sense for anyone to be affiliated to a political party unless they have chosen to do so. Men and women in Trade Unions should be able to make a more active, individual choice on whether they become part of our Party. That would be better for these individuals and better for our Party”.

Labour Members cannot want both individual choice for members of trade unions on how they contribute to any party, and at the same time resist measures to make membership records more accurate and more robust. How can anyone suggest that individuals making that choice should be confident that it will be recorded in a sensible and accurate way year by year if they do not know that those records are up to date? Like many other measures in this Bill, I think that they will pave the way to make serious reform of party funding easier and more effective in the future. I hope, therefore, that the Leader of the Opposition’s commitments earlier this year will make it easier, too.

This part of the Bill may not be perfect, but it is potentially an extremely important part of the jigsaw that will have to be put in place if the Leader of the Opposition’s proposals for a new relationship are taken forward after the conference that he is proposing next year. To that extent, these clauses and this part of the Bill must be welcome to those of us on all sides of the House who are genuinely determined to try to take big donations out of British politics.

Lord Whitty: My Lords, I think that at Committee stage I can make a point. I think that the noble Lord, Lord Tyler, was out of the Chamber at an earlier stage when I said that I did not believe that it was the Bill’s aim to attack the funding of one political party. The Minister should respond to the noble Lord, Lord Tyler. I agree with him on most of his issues, including potential reform of party funding. However, he suggested in his intervention here that the Bill is not about better measures for trade union members and more transparency but about taking a serious step towards undermining the funding of the major opposition party. If that is indeed the case, this is an entirely different sort of Bill and one that raises even more important issues than have been raised so far. I should like to hear the Minister’s views on that.

Lord Tyler: I think the noble Lord, Lord Whitty, presaged his remarks with , “before the noble Lord sits down”, so I presume that I am still on my feet. I do not think that the noble Lord was listening entirely to what I was saying. I was saying that if the Leader of the Opposition’s proposal for a new relationship between his party and the unions is to be on solid foundations, surely one of the most essential elements of that new relationship has to be accurate membership records for the unions. This part of the Bill is important in that new relationship. I hope, therefore, that the Labour Party and its leader will think very carefully. If they want to improve this part of the Bill, I am sure that the Government would be interested—although I cannot speak for them. It is important that everybody should have confidence in the accuracy of membership of the unions.

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Lord Whitty: My Lords, I do not want to prolong this but the noble Lord said that this Bill was about Parliament defining the internal constitution of an independent political party. There may be all sorts of things wrong with the constitutions of all the political parties represented in this House, and we all have views on that, but when the Government presented the Bill, that is not what they said it was about. We have now gone into huge new territory as a result of the intervention of the noble Lord, Lord Tyler, and we need the Minister to come clean. I hope that he will make it absolutely clear that the Government’s intention is not primarily to knacker a leading opposition party. If it is, it is a far more serious attack on democracy than even we supposed.

Lord Stevenson of Balmacara: That was interesting. What have we learnt? We have made two rather important steps forward down the path of trying to understand why we are here today and why the Bill is being considered. The first is the Minister’s, I think off-the-cuff, but rather interesting comment, that he resisted the idea that he had planted tanks on our lawn—presumably the trade union lawn—but that the wheels were on the lawn, even if the whole tank was not. I know about tanks, and they can fire very large and rather dangerous weapons; they do not have to be on your lawn to do damage but, if they are on your lawn, it shows real intent. I am afraid that that cat is now out of the bag, so we have that logged.

I thank the noble Lord, Lord Tyler, so much for being present for at least part of the debate, and for being able to enlighten us as to what exactly is going on in the corridors behind the party front that we call the coalition. As my noble friend Lord Whitty said, he has given us the answers to the questions that we have been asking the Minister all evening and to which we have not had responses. I asked 14 questions in my speech and got not a single direct answer to any of them. We now know that this is the set-up for the battle still to come on the question of party funding.

Well, well, well. Here we were thinking that we were talking about important issues such as rights, civil liberties, and so on, when the real debate was about trying to establish a hegemony in terms of party activity that would perpetuate the Conservatives and possibly the Liberal Democrats—I have my doubts about that—against the opposition party as it is presently constituted. Presumably, that gives credibility to the theory that I have heard advanced around the place, which is that this part of the Bill was originally considerably longer and dealt with the question of party funding in relation to the unions, but because of the demarche by the Leader of the Opposition. Mr Edward Miliband, it had to be changed considerably, and all we have left is a warming pan in the political bed that we are addressing. It keeps the issue on the table so that, when and if the parties opposite get their act together, they will move in on party funding in a way that, as we have heard from the noble Lord, Lord Tyler, is so crucial to the future of both his party and, presumably, the Conservatives. Okay, they can change the rules—but at least that is helpful to us in knowing how to address the Bill in more detail when we come back to it on Report.

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The amendments tabled in my name and that of my noble friend Lord Monks were difficult for us to frame because, like my noble friends Lord Whitty and Lord Lea, we felt very strongly that what was proposed in Clause 37 was not appropriate and did not satisfy the test of being in response to significant public concern, which we put to the Minister in Clause 36, but which he failed to answer. We felt that it was appropriate in the spirit of this House to table amendments in an attempt to ameliorate some of the harm that would be done otherwise. Our hearts are with clause stand part on Clause 37, and we will consider very deeply over the pause whether to come back to it.

As my noble friend Lord Whitty said, nobody has ever heard of an assurer. It is not a term that appears in any dictionaries that I have consulted. We do not know what it is. It is obviously important that jobs are created in our economy. We are grateful to the Treasury for thinking that they should do this, and the fact that there will be 10, 15, 20 assurers is obviously a great blow in support of the economic policies that the party opposite are trying to put forward. Really, the job is not worth the candle. As my noble friend Lord Whitty said, it would be much better if we were discussing practical things that could address a particular public policy.

It may be that a better self-certification system could be an advantage; it may be, because we do not know what the problem is. That would at least give a frame to the debates we are having. It may be that additional powers for the certification officer would also be of use. These things are matters that we could discuss. Cloaking them, as we have had already in Clause 36 debates, in some spurious idea that there is some concern out there that would be remedied by having an initial arrangement, is simply not sufficient. The Minister and the Government more generally should think again about this whole area.

During the debate, we raised questions about whether the confidentiality of the material made available to the assurer would be sufficiently robust to satisfy the points raised by my noble friend in other parts of the debate about recruitment and retaining members. I am sure that the Minister accepts that, for the confidentiality of trade union registers, these are really important issues. For many employees, their membership, or lack of membership, of a trade union is an extremely private choice, and one which they desire to keep confidential for many legitimate reasons. Indeed, the strength and legitimacy of these concerns was recently underlined by HMRC’s decision to back down in a dispute with Equity about providing personal information relating to its members following a strong response by the union, supported by Liberty, calling in aid Article 11 of the ECHR protections. The knowledge that under the new powers, trade unions could be required to provide their membership register to a Government body for any “good reason” may act as a disincentive for workers to join unions, particularly in light of the current concern over union blacklisting.

As this test is highly subjective, there is the potential for the power to be subject to abuse. For example, the Government may decide they have a good reason beyond that of ensuring public confidence in accurate

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records—their present argument—for wanting to know whether particular individuals have joined unions, and under proposed wording will be legally entitled to inspect registers under the guise of checking whether the register has been properly updated to include the suspected new members. Can the Minister guarantee that this will not happen? It is evident that the stated aim of ensuring public confidence in the status of union registers is already adequately addressed by the current system, which gives members the power to challenge registers at any time and requires the appointment of independent scrutineers at the key points when ensuring accuracy of the registers is important. Introducing wide-ranging powers of investigation by Government bodies and third parties that do not owe any duty of confidentiality to trade unions, coupled with a second layer of external auditing, is surely an overly intrusive measure, which will have an unwarranted detrimental effect on the members’ trust in the confidentiality of the union registers. These measures clearly go beyond what is necessary and proportionate to achieve any legitimate aim behind the proposals, if indeed there is one at all, and may constitute a breach of Article 11 of the convention.

It should be remembered that the Government are introducing this series of measures at the same time as the full extent of the scandal of blacklisting in the construction industry is gradually coming to light. This is by no means the only industry in which members of a union may wish to keep their membership confidential for fear of being subject to discrimination. On another Bill, the Minister was forthright in his condemnation of blacklisting. Does he not recognise the possibility of double standards here? Will he comment on that?

Viscount Younger of Leckie: My Lords, I will now respond to the group of amendments tabled to Clause 37, focusing on the role of the independent assurer, their appointment and removal, and the assurance process. I will deal with the question that the clause stand part of the Bill at the same time.

The Bill will provide greater visible assurance of the maintenance of trade union membership registers to members, employers and the wider public. Clause 37 gives credibility to that assurance by requiring independent scrutiny. Increasingly, a number of unions have become large organisations, serving a membership that frequently covers a variety of employers and workplaces. With this comes administrative complexity, as well as increased public interest in a union’s scope of influence. The nature of union membership data means that they decay easily, as has been mentioned. It is reasonable to think that someone moving house might forget to notify their union, for example. This is recognised in the existing duty for a union to maintain an accurate membership register,

“so far as is reasonably practicable”.

6.45 pm

Unions currently provide assurance in relation to financial matters. Their accounts are given credibility as they must be validated by an auditor. I believe that when in future a large union provides an annual membership audit certificate assurance, it should constitute a similarly independent assurance. Clause 37 therefore

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requires trade unions with more than 10,000 members to appoint a qualified independent person—an assurer— who will issue the annual membership audit certificate, stating whether the union’s membership system complies with the duties set out in Section 24. The assurer owes a duty to the union to provide the certificate and to carry out inquiries as necessary. They have the right to access the membership register and other relevant documents, and to require information from the union. Exactly which information may be relevant will vary between individual unions. It will be for the union to agree terms with the assurer. Clearly, the union does not have to provide information to the assurer unless it is relevant to the register of members’ names and addresses.

Amendment 118E is one of several amendments that reflect concern regarding the handling of union member data. The Government understand the sensitive nature of union membership data, and have ensured that there are legal safeguards in place, both through existing legislation and introduced by the Bill, to protect them. I therefore hope that I can reassure noble Lords that their concern here is misplaced. The assurer will not be able to provide assurance of a union’s compliance with the duty in Section 24 without access to the membership register. However, this access is subject to existing legal protections, as well as additional safeguards in the Bill.

The amendment would make the assurer owe a duty of confidentiality to the union and its members, and would require the assurer to comply with the union’s obligations in the Data Protection Act. The amendment is unnecessary. The assurer will already owe a contractual duty of confidentiality to the union, as stipulated in the Bill. The assurer is prohibited from disclosing member data unless in specific permitted circumstances. Furthermore, the Data Protection Act will apply because the assurer, in performing their statutory functions, will be a data controller under the Data Protection Act.

I know that the noble Lord, Lord Whitty, has a lively mind, as he chose to provide his own definition for the assurer. If I read him correctly, it was perhaps someone from an insurance background who came to knock at your door—or perhaps someone in a tea-break TV programme. However, I will attempt to clarify the role of the assurer. It is essentially to give an assurance. It is important that the assurer has widespread credibility with unions, their members and the public. They will therefore be an independent and expert third party and the Secretary of State will make an order setting out either which organisations are eligible or listing the criteria that must be met for a person to be able to act as an assurer.

At the moment we anticipate these to be recognised professionals such as solicitors, auditors, or independent scrutineers. In discussions with unions and others during the summer, there was general agreement to these professionals. This is similar to the existing system for scrutineers. Currently scrutineers, which are eligible to oversee ballots carried out by trade unions, are listed in an order made by the Secretary of State. In the other place, the Minister for Employment Relations and Consumer Affairs committed to consult on the order setting out who would be eligible to be an

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assurer. Clause 37 provides an order-making power for the Secretary of State to set out who is qualified to be an assurer. A person is disqualified should their independence or capability be questionable. However, beyond these conditions it is for the union to appoint an individual and define their contractual terms. Union rules will need to be amended to include provision for appointing and removing an assurer.

Amendment 118F would remove the provision for individual unions to define in their rules a process for the appointment and removal of an assurer. The intention appears to be to require unions to comply with specific requirements similar to the appointment of independent scrutineers. This would significantly limit the discretion afforded to unions in their compliance with the new requirements. The amendment would also remove some of the minimum requirements in the clause for the appointment and removal of an assurer. The Government’s approach is to allow individual unions the flexibility to identify the best process for the appointment and removal of an assurer. This reflects the unique nature of trade unions and the fact that they vary hugely in size, type and complexity.

The minimum requirements set out in the clause are to protect the longstanding principle that unions are accountable to their members—a principle which has been supported by all sides during the progress of this Bill. The Government believe that it is important that the removal of an assurer is by a resolution of the union’s membership or delegates.

The clause also provides an exemption from the requirement to appoint an assurer for newly created unions and those with 10,000 members or fewer. For larger unions, it is appropriate that a credible independent assurance is obtained. However, we are anxious not to prohibit the creation or existence of smaller unions, and this is one of the key ways in which we are ensuring an appropriate implementation of the Government’s overarching policy objective.

Amendment 118G is another that reflects concern about the handling of sensitive data by the assurer and is intended to test the strength of the provisions for protecting this. The amendment would prevent the appointment or reappointment of an assurer in the case of a breach of the union’s confidentiality, a breach of their statutory duties or terms of appointment, or where there are reasonable circumstances not to reappoint. I agree with the importance of rigorous safeguards with regards to the handling of union data and with the view that an assurer who has breached these obligations must not be reappointed. However, the amendment is unnecessary as this is already achieved by current legislation and the Bill as drafted.

First, the Secretary of State will define who is qualified to be an assurer. Secondly, the union will have discretion both to select the assurer and to define the detailed terms of their role. If for any reason the union has doubts about the assurer’s suitability for the role, including their handling of sensitive member data, it can pass a resolution to remove the assurer.

Amendment 118H examines the nature of the assurance and effectively raises the level of the test that is assessed. Instead of giving an opinion on whether the union’s systems for maintaining the register

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are satisfactory, it requires the assurer to state whether the union is compliant with the duty in Section 24 to maintain a register that is accurate and up-to-date.

I understand that noble Lords may be keen to explore the assurance process further. The Government, while allowing unions flexibility to define this, are also keen to support a smooth transition and will therefore produce guidance. However, I am concerned that a consequence of the amendment would be to make the assurance process far more costly and onerous to the union, both in terms of the role of the assurer and in the test that the union must meet with regards to its register. A systemic assessment is the appropriate and desirable approach. The appropriate method for assessing the maintenance of membership records will differ hugely between a narrow, sector-specific union with 15,000 members, such as the British Airline Pilots’ Association, and a union with a million members across a range of employers and job types.

In practical terms, I envisage that the assurer will need to understand how the records are compiled stored, and updated. Specifically, they may look to establish whether the union collects the data accurately from new members, reminds members to keep their addresses up-to-date, makes it easy for members to do this and updates the register promptly once changes are notified. We also expect that an assurer will be interested in the data-cleansing processes that larger unions use for electronic databases. Some assurers may also choose to undertake a number of spot checks of the accuracy of a proportion of member entries. However, we have not specified this detail in statute because the requirements will vary between individual unions.

It appears that Amendment 118J is designed to ensure that a union will not be held accountable for inaccuracies that were outside of its control. The amendment would create an additional element of the membership audit certificate, requiring the assurer to state whether, in the assurer’s opinion, the employer had shared “timely and accurate” details with the union and whether,

“any other aspects … have been out of the control of the trade union in the maintenance of the membership register”.

This amendment is unnecessary for achieving the intended outcome. The existing duty to which the new provisions relate is for unions to maintain a register that is accurate and up-to-date but only “so far as is reasonably practicable”. This reflects the fact that it is impossible for union records to be 100% accurate all of the time. I am also concerned that this amendment could potentially increase the costs of assurance for the union by adding to the role of the assurer in this way.

Amendment 118K would limit the assurer to only being able to require information from the union’s data controller rather than the union’s officers. The intention here is to ensure that only those who are required to comply with the Data Protection Act will deal directly with the assurer. This amendment is unnecessary because wherever any individual handles sensitive data they will always be required to comply with the Data Protection Act. The flexibility in the clause as drafted is necessary because the assurer may

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need to approach both those responsible for handling member data and those who have experience of the processes by which this is maintained in providing the assurance.

The purpose of Amendment 118L appears to be to allow the assurer to approach the employer to request information, presumably to allow for instances where the employer may hold more recently updated information than the union. As I have already stated, the union is already sufficiently protected from being penalised for errors that are outside of its control by the wording of the original duty in the 1992 Act. I therefore consider this amendment unnecessary. I am also concerned about the assurer directly approaching an employer requesting information and the risk that this allows the employer a level of knowledge about union membership that the individuals may not be comfortable with. This matter was raised earlier by the noble Baroness, Lady Drake, who is not in her place.

Amendment 118M is another example of seeking assurance that sensitive union member data will not be placed at risk. The amendment states that the assurer must comply with the Data Protection Act. As I have set out already, this is unnecessary because the assurer will already have to comply with the Data Protection Act by virtue of their role. The assurer will also be subject to the additional confidentiality provisions that are introduced by the Bill and may be subject to other contractual terms that are agreed with the union.

Amendment 118N appears intended to strengthen the steps an assurer must take to prevent the disclosure of union member details. However, I cannot see how the amendment would work in practice. It would require the assurer to take “all steps necessary” rather than “all reasonable steps”, which seems to suggest that there are some steps which would be necessary but would not be reasonable.

Amendment 118P seeks to amend these permitted circumstances by preventing the disclosure of member data in any circumstances except with their consent or where required as part of criminal proceedings. The effect would be to defeat the Government’s policy intention of giving assurance of unions’ compliance with the existing duty in Section 24. The amendment as drafted would, in practice, prohibit the certification officer, inspector or assurer having the necessary access to the register as they would be unable to identify the member in order to seek their consent.

The additional protection of member privacy that is sought by this amendment, and by many others discussed today, is unnecessary. There has been broad speculation that the provisions in this part of the Bill present a potential risk to sensitive membership data. I wish to reassure the House that this concern is misplaced. The changes that we are making are modest.

The powers of investigation introduced for the certification officer are consistent with those he already exercises in other areas, and there is no evidence of a problem here. The certification officer, the inspector and assurer will all be bound by a set of strict obligations in their treatment of union member data. Furthermore, the proposals in the Bill will not allow other parts of government or employers unauthorised access to member data.

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The noble Lord, Lord Monks, raised the issue of how the new regime could be justified on human rights grounds, and I would like to answer his question. As I have said before, the existing duty to maintain an up-to-date membership register has been around since 1984. Having agreed that a membership register is necessary, it follows that there should be an appropriate and effective enforcement regime. These provisions deal with inadequacies in the existing regime. At the moment a member cannot know whether there are widespread inaccuracies in the register, and the certification officer cannot know if there are inaccuracies because the union is under no obligation to disclose documents. If there is good reason to believe that a union may not be complying with Section 24 duties, it is important that this can be properly investigated. This investigation offers protection for union members. If the union is not complying with the overarching duty in Section 24, there is also the possibility that it is not complying with other obligations regarding the handling of sensitive data.

7 pm

The noble Lord, Lord Whitty, and my noble friend Lord Tyler discussed the political affiliation of trade union members. The Government’s position is very clear. We have no current plans to look at trade union legislation more widely. We have offered to assist the Leader of the Opposition with his planned reforms of union member participation in trade union political levies, if he wishes. I just wanted to make our position extremely clear on that point.

The noble Baroness, Lady Turner, said that these provisions will act as a deterrent to prospective new union members due to the concerns about confidentiality. I do not believe that the certification officer’s access to the membership register will interfere with the individual’s right to join a union. The certification officer already handles membership data under the current regime and there is no evidence of a problem with his handling of sensitive data; nor is there evidence that this has acted as a deterrent to joining a union. Protections in the European Convention on Human Rights and in the Data Protection Act will continue to apply as they do now.

I hope that in my rather lengthy response I have answered all or nearly all of the questions that were raised. I may owe the noble Lord, Lord Stevenson, some answers to his questions. I ask the noble Lord, Lord Monks, to withdraw the amendment.

Lord Whitty: I want to ask the noble Viscount two questions. He has been slightly more explicit about the role of the assurer, but why is it not possible just to add it to the role of the auditor for the trade union? I am grateful for the offer of help to sort out the Labour Party’s internal constitutional matters, but the Minister did not reply explicitly to the point I was making. I would like to have it on the record that the Government do not intend this Bill to be the paving stone for reforming political funding; that is, an attack on the funding arrangements of the major opposition party. Can we have it made clear that that is not the motivation behind this part of the Bill?

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Viscount Younger of Leckie: In answer to the noble Lord’s first question, I went some way forward in attempting to define what the role of the assurer will be. We have made it clear that the assurer is a new role and we should stick with that. The noble Lord’s point was that it should be commuted in with the role of an auditor, but they have distinctly different roles. The best thing is for me to write to the noble Lord to clarify the position of the assurer. I should re-emphasise that the union has a say in choosing the assurer from the approved list, which is originally approved by the Secretary of State. The role is currently being drafted and put together. We have some clear key powers and safeguards that are laid out as part of that role, but it is work in progress and I owe the noble Lord a letter to provide further clarification.

On his second question, I do not wish to go any further—and there is no need to go any further—other than the reply that I have given him. I hope that it has reassured not only the noble Lord but noble Lords opposite in terms of the position.

Lord Stevenson of Balmacara: We have had a very clear statement from the noble Lord, Lord Tyler, about what he thought this Bill was about. If the Minister cannot give a specific answer to the question of the noble Lord, Lord Whitty, will he turn to the noble Lord, Lord Tyler, and give him a straight rebuttal of what the noble Lord alleges?

Viscount Younger of Leckie: I intend to stick exactly to what I have said.

Lord Tyler: I apologise to my noble friend for quoting at such length the comments in the summer of the leader of the Labour Party. The Labour Party and its leader will benefit considerably if this part of the Bill, in whatever form, is enacted as there will then be a much more secure and robust form of record of all the membership of the unions. That is the point I was making.

Lord Monks: I thank the Minister for that disappointing reply and the noble Lord, Lord Tyler, for introducing an element which has not calmed or reassured anybody on this side of the House about the Bill. We thought that landing extra red tape on the unions was just an administrative muddle with a bit of political spite. Clearly, at least some on that side of the House have other motives in mind. It is rather difficult to follow the track. The Minister shakes his head, but that is not what he said. He had the chance to rebut the noble Lord, Lord Tyler, who introduced the party political funding item into this debate, and he has not done so. He had a chance to play the role of an assurer: he could have been a pioneer, but he blew it when he had that chance.

The Minister may have reassured some people. Employers must be fairly pleased. They will not be asked for any information. A big firm employing lots of people can screw up a payroll and so on. I see the noble Baroness, Lady Neville-Rolfe, in her place. Tesco has 140,000 USDAW members. I am not saying that Tesco would have screwed up a payroll, but if it did

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and somebody went to the assurer, it could not even be asked to provide information. The union will be the one in the dock.

Let us not pretend that this is some sort of friendly exercise, just tweaking the quality of union administration and helping people to get their records rather better when they are organising a construction site or when they are at the rough end of the retail industry. This is not about that at all, as the terms, to which we have drawn attention, on which an assurer can be got rid of involve going to the annual general meeting or a conference. It is almost as though this is a conflict and the assurer needs to be protected against what a normal auditor would be subject to, which is being fired by the decision of the board or, in the union case, the executive. The assurer is being protected on the suspicion that this person will be in conflict with the union.

That might be a reasonable assumption to make. The noble Lord, Lord Tyler, asked why people should be worried about it. It is because it will mean the job having to be done twice. Furthermore, he is an outside person who will get access to union membership records. The union prizes those records as well as their confidentiality. I will not press my amendment today. I will withdraw it, but noble Lords have not heard the last of this.

Amendment 118E withdrawn.

Amendments 118F to 118P not moved.

Clause 37 agreed.

Amendments 119 to 137 had been renumbered starting at Amendment 157.

Amendments 138 to 140 had been withdrawn from the Marshalled List..

Amendments 141 to 143 had been renumbered starting at Amendment 181.

Clause 38: Investigatory powers

Amendment 144

Moved by Lord Monks

144: Clause 38, page 43, line 18, leave out from “union” to first “to” in line 19

Lord Monks: My Lords, this group of amendments covers similar territory to the previous debate, so I shall not go over all that ground again. The amendments continue to emphasise the extent to which the Bill engages with both Articles 8 and 11 of the European Convention on Human Rights and EU and UK data protection requirements. Amendment 144 limits who can be directed to comply with requests from the assurer. We emphasise the need to do that centrally rather than it being done by some voluntary branch secretary or district office. The responsibility should be at head office with the person who controls data.

Amendments 147 and 150 would allow an inspector to request information from employers. We have just been debating that important issue, which employers are hiding from. I do not see how an assurer could do his job properly without that kind of right. Amendment 151 aims to ensure that the inspector

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owes a duty to the trade union that is employing him or her, as well as to the certification officer, especially not to breach confidentiality. The amendment seeks to disqualify from acting in this role an inspector who commits breaches. Amendment 152 again tightens the parameters of what an inspector has to do to maintain confidentiality—not just to take all reasonable steps but to take all steps necessary. Without being repetitious, I beg to move.

Lord Whitty: My Lords, I have four amendments in this group that relate to roughly the same territory—Amendments 145, 146, 148 and 149. In the previous clause we were concerned about the access of the assurer and those who approach the assurer to the membership records of a trade union. My amendments relate to the certification officer and the inspectors, or staff, of the certification officer.

Obviously, when there is a complaint from a member about the way in which his records have been dealt with, the certification officer or his agent needs to be able to look at that part of the records. However, the totality of the records of the trade union needs to be protected in almost all circumstances. My amendments propose that the documents that can be demanded by the enforcement authorities will not normally include the complete register of members.

On earlier amendments, my noble friend Lady Drake and others emphasised how important this is to civil liberties. When you are organising a trade union against employer hostility and the employer can go to the authorities to find out who in his workforce, or which potential recruits into his workforce, are members of a trade union, that is a serious restriction on the right to join a trade union with no detriment.

Taken one stage further, this relates to the issue of blacklisting. It has probably been a serious underestimate that some 2,000 people have been blacklisted over the years through the mechanisms established by certain companies in the construction industry. If all that the employers needed to do was get sight of a list of registered members of a trade union, or if there was a requirement after a third-party complaint for the certification officer to produce that list, the incidence of blacklisting would go well beyond the confines of the construction industry and the other areas where historically it has applied.

There is an important civil liberties, human rights and data protection issue here. I seriously counsel the Government to look again at the provisions here and to build in some safeguards themselves. The last thing that they want to do, I should have thought, would be to transgress data protection provisions. I hope that they would not wish to transgress the European Convention on Human Rights or the ILO conventions on the freedom to organise, join or not join a trade union. Yet these provisions in this part of the Bill and the role of the assurer move in that direction, and we need far firmer protections than are in the Bill to ensure that that is not exactly what will happen.

7.15 pm

I know that the Government sometimes appear to be pretty nonchalant about international obligations to the EU and the convention on human rights. However,

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I hope that in the area of employee protection this is not a policy emanating from the heart of government that states that these things do not matter. Protection from abusive employers and others over the right to choose whether to be a member of a trade union must be stated clearly in law. If the law is moving in a different direction to a new form of regulation, as this Bill purports to try to do, those protections need explicitly to be built into the legislation.

As my noble friend Lord Monks said, there are lawyers who say that the form of words in the Bill runs into difficulties on both the human rights side and the ILO convention side. I have no doubt that the Government could find a lawyer who would say the opposite. You can always find another lawyer, but as this is grey territory in which the Government could find themselves, instead of being a beacon for democratic and human rights, condemned in the councils of the world for breaching them, given that we are preaching democracy and freedom of association to less well favoured regimes in other countries.

I am not saying that the Government have yet got into that territory, but they are pretty close to it, and I hope that before the Bill disappears from this House we can see—from the Government preferably—some protections in this regard, not simply airy-fairy assertions that the Bill does not conflict with human rights legislation.

Lord McAvoy (Lab): Will my noble friend comment on the dangers of blacklisting? An investigation carried out in Scotland by the former MP for Maryhill, Maria Fyfe, uncovered a list of people who were blacklisted. Among them was my name. I know that that might sound a bit ridiculous now, but that could have affected my employment and public record. Does my noble friend accept that it is quite right to emphasise the dangers of blacklisting?

Lord Whitty: Indeed, my Lords. The Scottish Affairs Committee in another place have performed a very good task in bringing this issue to light, but we have not seen everything; a lot of names on those lists were destroyed. Among them were people who some of us on this side knew, including my noble friend who obviously chose a change of career at just the right point. So far, at least, he has not been blacklisted from being a Member of either House of Parliament. This matter does not affect just some lunatic subversives out there; it can potentially affect solid citizens trying to conduct their trade, such as my noble friend in his earlier existence. This is a threat to liberty and freedom of association, and a threat to the Government’s reputation in the councils of the world. Please take this seriously.

Lord Lea of Crondall: Perhaps I may mention in this connection the comment of the Royal College of Nursing—a union that is not normally associated with industrial difficulties. However, it states:

“Both the Government appointed Certification Officer and the Government approved Assurer would have powers to access unions’ membership records. In addition, the bill also proposes that any third party would be able to lodge a complaint about union membership—there is a potential for this to be abused during periods of industrial dispute. A complaint would be considered by investigators who would, in turn, also have access

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to union membership records. These proposals pose a serious risk to confidentiality of trade union membership and place undue bureaucratic and costly burdens on trade unions”.

I thought that it would be good to place on the record that comment from the Royal College of Nursing.

Lord Stevenson of Balmacara: My Lords, this group of amendments is different from the others we have considered this evening because it does not contain a clause stand part. The reason for that is because we think, certainly in relation to the ones in my name and that of my noble friend Lord Monks, that they are sensible safeguards and measures that we would recommend to the Government as being appropriate and proportionate in relation to the aims set out for the Bill. I gather from the remarks made by my noble friend Lord Whitty, and to a certain extent from those made by my noble friend Lord Lea that they shared this approach. So we are not, in this mode, trying to be as aggressive—as it could perhaps be considered—in relation to the Bill as we were in Clauses 36 and 37.

That does not remove from our side the feeling that these provisions are still aimed in the wrong direction, and that they lack a sensible underpinning in terms of public policy and have not been properly consulted on. However, in relation to the generality of the proposals, there is a case for the Government to move a little way towards us. I suggest that even if they cannot accept every one of the points made in this group, they might consider taking them back and reconsidering them. That would certainly give us a little more confidence that they were taking us seriously in these debates rather than simply retreating into the rather partisan approach that has been evident so far.

The underlying concerns that have been mentioned by noble Lords about blacklisting are important. It was perhaps unfortunate that my noble friend Lord Whitty referred to my noble friend Lord McAvoy as a solid citizen because that would in no sense reflect on his ability to do the work that he was no doubt being considered for before he was unfortunately blacklisted. I jest of course—I think. The point is well made. This is not something that is happening over there and far away. This is happening to real people in real time and it is affecting lives and blighting careers. Its cause is largely due to the circulation of lists, and therefore, by following back that logic, it is something that we are very concerned about. Everyone should be concerned about that and we should do everything in our power to make sure that datasets of the type that could cause solid citizens to be affected are protected in a way that allows them to be kept as close as possible to what is required and necessary so that they are not in any sense open to the risks mentioned during this debate.

We do not have any particular issues that make one point more than another, but it is important to recognise that for many years this country has been proud of its effective and well working relationships between unions and employers. We want to see them continue. As I have said, it is an important part of the contribution that can be made by industry and also by those working on the services side towards economic growth. While we object to the measure before us in general terms, we think it could be strengthened if it has to be turned into law, and these amendments are therefore recommended.

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Viscount Younger of Leckie: My Lords, at the outset I want to address the issue of blacklisting that was raised by the noble Lords, Lord Whitty and Lord McAvoy, as we take any allegations of blacklisting very seriously. It is unlawful under the Trade Union and Labour Relations (Consolidation) Act 1992 to refuse to employ a person because they are a member or not a member of a trade union or because they refuse to join or leave a trade union. It is equally unlawful for an agency to refuse employment services on those grounds.

In 2010, in response to the Consulting Association blacklist uncovered in 2009, the Government strengthened anti-blacklisting legislation and increased the penalties for unlawful processing of data. Data controllers can now be fined up to £500,000 for serious offences. Despite several allegations of new evidence of blacklisting, to date we have seen no evidence of this practice recurring. As noble Lords will know, the Scottish Affairs Select Committee and the Information Commissioner are both currently investigating the potential for ongoing offences, and the Government continue to take a close interest in this issue. I thank noble Lords for raising this particular point.

Let me now turn to the individual amendments that have been proposed. Amendment 144 seems intended to prevent the certification officer and any authorised person from being able to require any branch or section of a trade union from supplying relevant documents. Even if the amendment had the desired effect, I do not believe such a change would be necessary or desirable. The phrase,

“a trade union, or a branch or section of a trade union”,

is used elsewhere in the Trade Union and Labour Relations (Consolidation) Act 1992, for example in the context of financial investigations. I would imagine that a union would want the certification officer to make every effort possible to obtain relevant documents. If its record keeping is decentralised, a union’s head office may not know if there is a problem.

Amendments 145, 146, 148 and 149 are probing the protections for unions with regard to the new investigatory powers of the certification officer and any inspectors he may appoint. These amendments all seek to restrict access to a union’s register of member names and addresses. Clause 38 gives the certification officer the power to require a union to produce relevant documents where he believes there is good reason to do so. If the certification officer has appointed an inspector to investigate, the inspector can also require documents relevant to the investigation. In both cases, “relevant documents” is defined as including a union’s register of members’ names and addresses.

Noble Lords are proposing instead that “relevant documents” should “not normally include” the register. They go on to propose that production of the register may be required by the certification officer only where the High Court has concluded there has been a criminal offence, a breach of human rights, or substantial danger or damage to third parties or to national security. The noble Lords also state that the registers shall not be available to third parties. This represents a significant set of constraints. I fully understand the concerns driving the amendments. Sensitive data on

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who is a member of a trade union must not be treated lightly, but I hope that I can offer reassurance about the legislative protections already in place, as well as those included in the Bill.

In the first place, however, I need to be clear that access to the register by the certification officer or his inspector is an essential requirement of providing assurance. Establishing compliance with the legislation would be impossible without either the certification officer or the inspector being able to exercise a right to access the register itself. Without this, they are wholly reliant on what the union tells them. This is inadequate in circumstances where there is reason to believe there is a problem. Access to union membership data by third parties is something that already occurs. Both the certification officer and independent scrutineers, who are responsible for ensuring the propriety of ballot processes, often need access to membership data, but there is no suggestion this has led to any misuse.

Let me explain what protections are in place. The certification officer is an independent officeholder. He is also under a duty to exercise his powers consistent with rights conferred by the European Convention on Human Rights, including the rights to privacy and freedom of association. The certification officer is well placed to deal with sensitive data and there have been no problems in the history of the office of which we are aware. The Data Protection Act also applies to the certification officer and his inspectors so that they will be required to use any personal data, including data on union members, consistently with the protections it contains. The Information Commissioner has powers to enforce the data protection principles and can impose substantial fines for some breaches.

Amendments 147 and 150 would specifically allow the certification officer or his inspector to require names, dates of birth and national insurance numbers held by the employer to allow for cross-referencing to complete an investigation. It is not clear why the certification officer would need to request this information or why the inspector would require it. None of the comments we received during our targeted consultation over the summer suggested that this information was necessary. In practice, the duties under Section 24 of the 1992 Act do not require the union to keep members’ dates of birth or, indeed, national insurance numbers. More importantly, this could have the unintended consequence of widening the scope of sensitive information handled by the certification officer and the inspector for no particular reason. There is no reason why they should automatically have access to dates of birth and national insurance numbers during an investigation. Nor is there any reason why they should be able to require it from an employer.

Amendments 151 and 153 share a common goal of ensuring that there are appropriate protections to ensure that the inspector handles sensitive membership data properly. I will therefore speak to them together. I would like to reassure noble Lords that there are already strong safeguards in place to ensure that union membership data will not be compromised by an inspector’s investigation. The certification officer will use his discretion to appoint an inspector—as he does at the moment for inspectors appointed to investigate

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a union’s financial affairs. It will be for the certification officer to ensure that he appoints someone capable of fulfilling their responsibilities. The inspector will owe a duty of confidentiality to the certification officer. Extending that duty of confidentiality to the trade union could have the unintended consequence of interfering with the independence of the investigation.

Should the inspector breach the duty of confidentiality owed to the certification officer, it will be for the certification officer to decide how to deal with this. The officer will want to consider the circumstances and severity of the breach to decide what is appropriate. For example, if the inspector is a member of the certification officer’s staff—as they could be—the certification officer will have a range of options, from retraining to dismissal.

A third party appointed as an inspector is likely to be someone in a professional firm. It would seem unnecessarily restrictive to require that the certification officer could never appoint that firm again, no matter what happened to the individual concerned.

7.30 pm

Lord Lea of Crondall: Will the Minister respond to what many on this side have been driving at? Both in the retail sector and the construction industry there is widespread use of casual and agency workers. Obviously, the employer knows who the workers are. Unions, in recruiting members to represent them, have great difficulty in getting data on who is employed, who is on sick leave and so on, so the word “reasonable”, which we understand to be used for the new union audits, should be constructed on the premise that there must be a level playing field.

Viscount Younger of Leckie: I assume that that was a specific question relating to contractors. I hope I have got that right. If the noble Lord’s question was broader than that, I pledge to write to him to clarify the position.

It would seem unnecessarily restrictive to require that the certification officer could never appoint that firm again, no matter what happened to the individual concerned.

In addition, if the appointed inspector—or any other individual, for that matter—has breached data protection rules by mishandling personal data, the union may apply to the Information Commissioner, who enforces the Data Protection Act. The Information Commissioner has a range of powers at his disposal, including imposing a fine of up to £500,000. I therefore believe that the amendment is unnecessary.

Amendment 152 would change Clause 38 so that the inspector appointed by the certification officer to investigate discrepancies would also have to take “all steps necessary” to protect a member’s name and address, instead of “all reasonable steps”. I find it difficult to see what the amendment achieves in practice. The assumption appears to be that there are steps that might be necessary but are in practice unreasonable. I consider “all reasonable steps” to be sufficient.

I hope that the noble Lord will feel able to withdraw his amendment.

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Lord Monks: My Lords, I thank all noble Lords who took part in the debate. As the Minister gave his assurances about how seriously the Government take blacklisting, which has been so interestingly revealed recently, not least by my noble friend Lord McAvoy, I was minded that we might have found an actual role for an assurer. That is an assurer whose job it is to try to make sure that people in the construction industry are not blacklisted. Despite the increase in fines, the issue is finding out what people are doing. Somebody who went in to have a look at payrolls, private e-mails, and so on, could probably find that out.

That is a problem that the Minister acknowledges exists. We have not got a problem in the area of union membership and union membership records—or not one that is easy to do very much about, particularly in industries that are casualised. I will just say that the nature of the assurer in the union context is almost, “I’ve got to be reassured that your systems are okay”. That will be a rather adversarial position; not a consensual one, as the Minister is presenting it. It will be adversarial, especially when people are not exactly sure what will happen to the information. Why do they need that information if there is no trouble and no complaints?

The Minister’s point is that the certification officer and the scrutineer have access, so why not an assurer? The difference is in the nature of the relationship. The assurer would have a much more adversarial position than the one that those two have. Essentially, the assurer is saying, “I don’t really trust your records until I have had a very good look”. That is our major problem with it.

I will withdraw the amendment, but we will no doubt return to the matter later in our proceedings.

Amendment 144 withdrawn.

Amendments 145 to 153 not moved.

House resumed. Committee to begin again not before 8.36 pm.

New Psychoactive Substances: EUC Report

Motion to Take Note

7.36 pm

Moved by Lord Hannay of Chiswick

That this House takes note of the Report of the European Union Committee on the Commission proposal for a Regulation of the European Parliament and of the Council on new psychoactive substances (COM(2013)619, Council Document 13857/13) and on the Commission proposal for a Directive of the European Parliament and of the Council amending Council Framework Decision 2004/757/JHA of 25 October 2004 laying down minimum provisions on the constituent elements of criminal acts and penalties in the field of illicit drug trafficking, as regards the definition of drug (COM(2013)618, Council Document 13865/13) (6th Report, HL Paper 73).

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Lord Hannay of Chiswick (CB): My Lords, in moving the Motion in my name, I invite the House to endorse the proposal of the European Union Select Committee that a reasoned opinion should be issued concerning the European Union Commission’s proposals to regulate new psychoactive substances.

Those proposals were considered in depth by the EU Sub-Committee on Home Affairs, Health and Education, which I have the honour to chair, during October this year. We took evidence from the Minister of State at the Home Office, Mr Norman Baker, on 16 October. We have concluded that the proposals do not comply with the principle of subsidiarity.

New psychoactive substances are natural or synthetic substances that act on the central nervous system and modifying mental functions in similar ways to illicit drugs such as cocaine and amphetamines. They are often referred to as “legal highs”. As many Members noted in the debate in this House on 17 October in the name of my noble friend Lady Meacher, when we debated wider issues of drugs policy, new psychoactive substances have the potential to pose serious risks to public health and safety. Despite often being marketed as legal alternatives to illegal substances, users can have no certainty as to the health risks that can arise from using them, nor the legal status of those substances.

Our report does not comment on the merits of policies to ban, regulate or permit the new psychoactive substances. We have not dealt with that wider issue. Debates about that are going on in many countries around the world and around Europe, and will continue to do so as the ingenuity of scientists leads to the production of new substances. In this debate, and in this Motion, we are concerned with who should have the power to ban those substances and why. On 20 September, the European Commission published proposals for a directive and a regulation with the stated aim of improving the functioning of the internal market regarding the legal use of new psychoactive substances. It argues that many new psychoactive substances that are used recreationally have, or could have, various uses in industry which are hindered by market restrictions. The Commission considers that member states alone cannot reduce the problems caused to the internal market, given their divergent responses to new psychoactive substances. It also argues that EU-level action is necessary to ensure that potentially harmful new psychoactive substances can be identified, assessed and, if necessary, withdrawn quickly from the market across all member states.

The committee shares the Commission’s concerns about the risks of harm posed by these substances to the health and safety of EU citizens. In our 2012 report, The EU Drugs Strategy, we concluded that the EU has an important role to play in strengthening and adding value to the actions of member states in tackling the negative effects of these substances. However, we concluded then, as we do now, that action to deal with them is best taken in the first instance by member states. We part company from the Commission when it proposes to take that responsibility for taking such decisions away from member states, and transfer it to the Commission itself. In our view, the two proposals

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include some provisions which are best left to member state action, and so are not consistent with the principle of subsidiarity.

The proliferation of new psychoactive substances is influenced by regional, national and international forces. These manifest themselves quite differently in different member states, depending on the speed at which the substances become available and the severity of their impact on public health. In any case, member states have different systems for dealing with harmful drugs in general, and for addressing new psychoactive substances. They require flexibility to respond rapidly to local situations. Therefore, member states are best placed to decide how to respond to the proliferation of these substances in the manner that best fits the circumstances in their jurisdictions.

This would not—and I underline this point—preclude EU-wide action being taken by the Council with respect to a particular substance or group of substances, if the Council felt that such general measures were needed across the European Union. We support those parts of the proposals that would strengthen the roles of the European Monitoring Centre for Drugs and Drug Addiction and of Europol in the process of analysing and dealing with the risks from new psychoactive substances.

I should add that we received evidence from the Government that leads us to conclude that the legal trade in psychoactive substances—which is the reason given by the Commission for basing these proposals on single market provisions—is not in fact large enough to justify the Commission’s view that its proposals are needed to protect the single market. We therefore concluded that, in addition to our concerns about subsidiarity, the measure was in any case disproportionate, although there is no formal reference to that point in the reasoned opinion, which is of course about subsidiarity alone. The House of Lords EU Committee therefore does not agree that these matters justify transferring member states’ decision-making power in respect of new psychoactive substances to the Commission. I beg to move.

7.45 pm

Lord Sharkey (LD): My Lords, it is a pleasure to follow the noble Lord, Lord Hannay, as it is to serve under his chairmanship on your Lordships’ EU Sub-Committee F, which produced the report which forms the basis for this debate. New psychoactive substances, or so-called legal highs, continue to be a serious concern. Not only are many of these substances very dangerous, but more of them are invented and marketed throughout the world every year, which of course includes within the EU. The number of new psychoactive substances detected tripled between 2009 and 2012. The EU Commission reported in September that so far in 2013, more than one new substance has been reported every week.

This is a matter for urgent concern and urgent action, because many of these new substances may well turn out to be very dangerous. Every week, the UK news media report tragic stories involving the use of these substances. Three weeks ago, the Daily Mail reported the case of a 20 year-old boy from Gravesend

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who died within hours of taking a legal high. He was found next to a plastic bag from the legal high shop, UK Skunkworks. A teenager in Southampton died in August after taking alpha-methyltryptamine. There are many similar stories. These drugs are generally easy to get hold of, both on the net and on the high street. The

Sunday People

reported last month that UK Skunkworks, a retailer of legal highs, now has 21 shops in the UK, including one in Maidstone which is situated next to a drug rehab charity.

The problem of legal highs is of particular concern here in the UK. Britain accounts for nearly a quarter of Europe’s entire legal high market, compared to France at 14% and Germany at 12%. There are drugs which are common here in the UK that are rare elsewhere in the EU, and vice versa. As the noble Lord, Lord Hannay, said, in general the market for these drugs is characterised across the EU by rapid innovation locally, and by differing levels of the presence of different drugs in different member states.

The EU already has in place a mechanism for dealing with and banning new psychoactive substances, but this mechanism is widely acknowledged to be cumbersome, slow and not especially effective. The new regulation proposed by the EU is intended to replace this with an improved version, but we already have an improved version in operation in the UK. Here, Ministers are able to issue temporary class drug orders, which ban a drug for 12 months to allow the Advisory Council on the Misuse of Drugs to report on whether a permanent ban should be put in place.

We already use this mechanism to react very quickly to the appearance of new, worrying legal highs. In the past 12 months we have used this power to ban substances called NBOMe and Benzo Fury. We also now control mephedrone, naphyrone, BZP, GBL and synthetic cannabinoids. These were all previously legal highs. All of this is driven by the Home Office forensic early-warning system, which has the job of identifying early new psychoactive substances which are potential threats. In fact, in the past year the forensic early-warning system identified 10 new psychoactive substances not previously seen in the UK and, importantly, not present elsewhere in Europe. Of course, here in Britain we also have an extensive education programme aimed at alerting people to the dangers of the drugs that are found here. The Government deserve particular praise for their 10 year-old “Frank” programme, which has a new advertising campaign beginning in January.

The question we are addressing this evening is whether we should give up control of our system of policing and controlling new psychoactive substances, which works well, and hand it over to the EU. There is no compelling evidence to suggest that this would be a good or even a sensible idea. The new EU regulation proposes a power to impose a temporary measure, restricting new psychoactive substance sales for a year, to be introduced within weeks of an alert. We already do this, and we can do it when the problem is not present elsewhere in the EU. The new EU regulation proposes permanent measures that can be introduced within 10 months to restrict the sale of new psychoactive substances to consumers. We can already do this, too. Again, we can do this for substances that may not yet be present in the rest of the EU.

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The new regulation simplifies the existing EU procedure, but the new procedure will still be relatively slow and complex. According to the EU’s own description of the procedure, a substance must raise concerns across the Union before EMCDDA and Europol draft a report on the substance. On the basis of this joint report, the Commission then decides whether there are grounds to require a fully fledged risk assessment. This is too slow, too complex and too coarse-grained, and it is not necessary here. We already do better than this. This would certainly not help, and would in fact be a retrograde step. Giving competence to the EU, as in the proposed regulation, would add nothing at all. The proposal fails the test of subsidiarity, which is why I strongly support the Motion to issue a reasoned opinion to that effect.

Baroness Meacher (CB): My Lords, I shall speak to the Motion to Take Note concerning the proposed directive and EU regulation on new psychoactive substances. The European Commission’s head of unit on anti-drug policy, Dana Spinant, sent me the draft regulation for comments some weeks ago and I want to put on record that views that I expressed to her.

The interest of this regulation for the APPG for drug policy reform, which I chair, follows our one-year inquiry into the supply, demand and risks associated with new psychoactive substances in the UK. In the course of that inquiry we received evidence from the Home Office, the UK Border Agency, ACPO, the ACMD, experts and front-line specialists on the subject. What was surprising was the degree of consensus about the challenge of new psychoactive substances to our country, and the fact that our current drug laws are not fit for purpose to deal effectively with these new drugs. Our report, Towards a Safer Drug Policy, sets out our conclusions, which resonate well with key points in the draft regulation. I feel bound to pick up a point made by the noble Lord, Lord Sharkey, who said that our laws are working well. The reality is that all those experts, whether they were from the Home Office, ACMD or the UK Border Agency, were clear that our laws are not working well and are not fit for purpose. They were not designed for this kind of problem at all, so we have to take that on board.

I welcome the comments of my noble friend Lord Hannay that the aims of the proposed directive and regulation are laudable. I also welcome his recognition that the EU has an important role to play in helping to tackle the problems presented by new psychoactive substances—or NPS, if I may call them that. The fact is that we cannot deal effectively with these drugs at a national level. I note that the EU committee does not support acceptance of the regulation on the grounds that flexibility will be important, but I would like to put on record reasons why the thrust of the regulation should be supported even if the proposed status of regulation might be rejected. I will comment on just three issues: first, the consultation undertaken before producing the draft regulation; secondly, the role of the EU in assessing new psychoactive substances; and, thirdly, the focus on the supply side of the market.

The Commission has undertaken an incredibly widespread consultation, as we did in our inquiry, to ensure that the draft regulation reflected people’s views—

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that is, experts’, doctors’ and scientists’ views. Large numbers of member states view the lack of alternatives to control and criminal penalties in the current instrument as inadequate and suggest that a wider range of options should be considered, backed by the administrative law. Obviously, that is for the lower-level substances. This is something that the All-Party Parliamentary Group on Drug Policy Reform agrees with most strongly. The fact is that bans and criminal sanctions are not effectively stemming the flow of new psychoactive substances into Europe, nor indeed into the UK. Of course, the UK has a problem with NPS twice the average for the European Union. We are the leaders in this field. This is where the drugs come from China and India before flowing across Europe.

The Commission’s impact assessment concluded that,

“a more graduated and better targeted set of restriction measures on new psychoactive substances”,

would be preferred. Its rationale is that if low-harm, properly labelled substances were available for young people to take and if it was clear what those substances were, with their risks and so on, those people might be more likely to avoid the much more dangerous substances, which would need to be banned. Some warned that blanket restrictions on entire groups of substances could have adverse effects and that restriction measures should be proportionate to a better determined level of risk of substances. All the evidence presented to our APPG on Drug Policy Reform’s inquiry supported these views from the EU. All the experts were saying that we need a proportionate response and a risk-based policy.

The main adverse effects of punitive measures are familiar to us. First, there is the displacement of one set of drugs by new substances that are possibly even more harmful. Indeed, they are more harmful because they are even less known. When something just arrives from China, you have no idea what it is. As we ban one, along comes another, or maybe another two. Secondly, rendering such substances inaccessible for research and legal commercial activities presents major problems.

I turn to information gathering and exchange, and the assessment of risks of new psychoactive substances. The European Monitoring Centre for Drugs and Drug Addiction was established by regulation in 2006 and has done an excellent job in generating information about drugs and drug use across the EU. The proposal for a regulation on NPS makes it clear that the EMCDDA should have a central role in the exchange of information on NPS and in the assessment of the health, social and safety risks that they pose.

The APPG’s inquiry panel was very concerned that our Advisory Council on the Misuse of Drugs has the resources to undertake risk analyses on only two NPS per year. With about 70 new substances due to come into this country in 2013, clearly we are completely losing the battle. If all EU countries contributed to resourcing the EMCDDA—which to an extent they do already, but clearly it needs more support—it could then co-ordinate this work on behalf of all, avoiding duplication. More substances would be analysed and sensible policy decisions could then be made based on

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the risk analyses that might be undertaken, two per country, across the EU. We would then be beginning to tackle the problem. As the European Commission proposal makes clear:

“Any Union action on new psychoactive substances should be based on scientific evidence”.

That has to be the fundamental principle behind our policy but while we have no resources to provide the scientific evidence, we cannot have a scientific or an evidence-based policy.

My third point is on the focus of the regulation upon the supply side of the market. The proposal for the regulation refers to the fact that restrictive measures vary significantly in different member states. This is a major problem for legitimate economic interests. In the case of the same NPS, they have to comply with different requirements such as pre-export notifications, export authorisation or import and export licences. All this hinders the functioning of the legitimate internal market for particular products which happen to have one NPS as an ingredient. New psychoactive substances should be able to move freely within the Union when intended for genuine commercial purposes, as well as for scientific research. The research professors who gave evidence to us were certainly worried about the control of these substances happening in a thoughtless way that was not based on evidence. At the same time, NPS that pose a medium or severe health, social or safety risk should be addressed at the Union level by controlling the supply appropriately and fairly across the EU. I support the EU regulation for two reasons: it concentrates upon the supply side and it highlights the importance of proportionality of the response.

I end by congratulating the Government on the effective decriminalisation of the possession and use of new psychoactive substances for a 12-month period under the temporary class drug orders, which focus on the supply side. If the UK adopted the EU regulation or the ideas within it, the 12-month limit to drug orders should no longer apply. This would be a positive step forward. According to the evidence, decriminalisation of the possession and use of drugs does not lead to an increase in drug use and can lead to a reduction in drug dependence. It also has the benefit of enabling resources to be transferred from criminal justice to treatment, thus raising the prospects of people recovering and getting back to employment.

In conclusion, I respect the recommendation of my noble friend Lord Hannay that the proposed draft regulation be rejected. However, I hope that the valuable proposals in it will not be lost and will inform decisions about how the UK and the rest of Europe move forward to deal with the very real problems presented by new psychoactive substances.

8 pm

Viscount Bridgeman (Con): My Lords, I thank the noble Lord, Lord Hannay, for his excellent exposition of this report. My noble friend Lord Sharkey has given the background in some detail. The noble Baroness, Lady Meacher, has given more qualified support.

As a relatively new member of this committee I am struck that this is a classic case of subsidiarity: where there is a clash of joint competences between the

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Commission and a member state, the member state should prevail. I hope that I do not put that too simply. It is also an example of proportionality. We found that the Commission’s concern about legal transmission of these substances was disproportionate. Insufficient data were produced. We therefore disagreed with the Commission on that point. My third point is that this report makes it clear, if our views are taken into account, that the member states will be dependent on the two central bodies referred to by the noble Lord, Lord Hannay, and other back-up services from the Commission.

I conclude by reminding your Lordships that my honourable friend Norman Baker, my Liberal Democrat colleague in the Commons, was fully supportive of the view at which the committee has arrived.

Lord Rosser (Lab): My Lords, I extend our thanks to the noble Lord, Lord Hannay, and his committee for their report. It contains a clear recommendation that there should be a reasoned opinion concluding that the proposed regulation and directive do not comply with the principle of subsidiarity.

As has been said, psychoactive substances are natural or synthetic substances that affect the central nervous system, and induce a stimulating or depressing effect in the same way that illicit drugs such as cocaine or ecstasy do. They are often marketed as legal alternatives to illicit drugs, which is why they are called “legal highs”. Like illicit drugs they can cause considerable harm to those who use them, including severe physical or psychological harm, or even death.

Many new psychoactive substances have or could have other uses in, for example, the medical, chemical or high-tech industries. Around a fifth of the substances notified through the EU-level mechanism of exchange of information have some other legitimate uses. New psychoactive substances are not, however, subjected to control measures under the UN conventions on drugs and are not therefore covered by a Council framework decision of 2004 on the approach to the fight against illicit drug trafficking.

However, the number of new psychoactive substances emerging and spreading increasingly quickly in the European Union is rising fast, and more than 300 new substances have been detected in Europe since 1997, with the number of substances identified between 2009 and 2012 tripling from 24 to 73 a year. The rise in the availability of such substances has led to an increase in consumption across the EU, and 80% of new psychoactive substances are reported in more than one member state.

As we have heard, the European Commission considers that the current EU instrument of 2005 on the information exchange, risk assessment and control of new psychoactive substances is unable to provide an adequate response to this growing challenge, because it does not enable harmful substances to be withdrawn from the market quickly enough, or provide a response proportionate to the level of risk involved. The Commission’s new proposals that are the subject of this report seek to establish rules for restrictions to the free movement of new psychoactive substances, and are also intended to enable quicker and more proportionate measures to be taken on such substances.

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The measures proposed would be introduced within weeks in case of an immediate risk and would restrict the sale of new psychoactive substances to consumers across the EU for one year. Alternatively, they could be introduced within 10 months and would restrict the sale of a substance to consumers across the EU and, in cases of severe risk, even their use in industry. They would be directly applicable in the member states and would not need to be transposed into national law. According to the Commission, under the current system the entry into force of restriction measures takes up to 24 months.

The Commission proposal also seeks to provide for the most harmful new psychoactive substances to be covered by the same criminal law provisions as substances controlled by the UN conventions. The proposed regulation is also intended to improve the functioning of the internal market in respect of legal uses of new psychoactive substances by reducing obstacles to trade and increasing legal certainty to economic operators.

Under the Commission’s proposals the European Monitoring Centre for Drugs and Drug Addiction—the EMCDDA—would be advising the Commission to take no further action in respect of a substance assessed as low risk. We would have concerns about this, because it is not clear by which means or form of testing the EMCDDA would come to this conclusion, and how it would assess long-term and psychological harms. We do not agree with ceding to the EU powers to classify drugs, but we certainly agree with EU-wide co-operation on a laboratory with power to give advice and information, as has been pressed for by the United Kingdom Drug Policy Commission and others.

The Commission considers that its proposal is consistent with the principle of subsidiarity, because member states alone cannot reduce the problems caused to the internal market due to their divergent responses to the new psychoactive substances, and because EU-level action is necessary to ensure that potentially harmful new substances can be identified, assessed and, if necessary, withdrawn quickly from the market across all member states. The EU committee report disagrees with the Commission’s assessment that its proposal satisfies the principle of subsidiarity, which provides that in policy areas that do not fall within the exclusive competence of the EU, but where competence is shared with the member states, the European Union can act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the member states.

The EU committee, as the noble Lord, Lord Hannay, has set out, has given its reasons for believing that it is actually the member states that are best placed to decide how to respond to the proliferation of these substances in a manner that best fits the circumstances in their jurisdictions, and that it is of the utmost importance that member states retain their ability to decide what action should be taken in their jurisdictions regarding new psychoactive substances. On improving the functioning of the internal market in respect of their legal trade, the EU committee says, as once again the noble Lord, Lord Hannay, has said, that the UK Government’s evidence indicates that the legal trade in such substances is not sufficiently extensive to warrant

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the Commission’s proposed action that the committee thus regards as a disproportionate response.

We share the committee’s view, in respect of new psychoactive substances, that the case has not been made to justify transferring member states’ decision-making power to the Commission, and that the proposed regulation and directive do not comply with the principle of subsidiarity. But I have a couple of points to raise with the Minister.

The United Kingdom appears to have Europe’s largest legal highs market. At present it is not that far short of 100 new psychoactive substances arriving on the UK market per year. Yet the Government’s temporary banning order has been used just some three or four times. There appear to be two reasons. The first stage of the process is, I believe, a letter from a Minister to the Advisory Council on the Misuse of Drugs—the ACMD—but with the letter seeming to take some time to be sent. The second reason is the resource capability of the ACMD that apparently can assess only two or three new substances a year. Perhaps the Minister could comment on this situation and give us his view of the reasons for it.

The EMCDDA produces lists of new psychoactive substances. Despite requests, no explanation has been offered to date as to why there are substances on its list that have not made it on to any Home Office list. Perhaps the Minister could provide this explanation. As things stand, it seems that we will never be able to keep up with the number of new such drugs on the market, despite the apparent universal concern, including from the EU committee, about the risk of harm to the health and safety of citizens across Europe posed by the creation, availability and use of these new psychoactive substances.

In conclusion, I reiterate that we support the recommendation in the EU committee’s report.

Lord Ahmad of Wimbledon (Con): My Lords, I thank the noble Lord, Lord Hannay, for tabling this debate and through him, as chairman, thank the other members of the committee. The EU proposals published on 17 September on new psychoactive substances raise many issues around the principle of subsidiarity, and I think that warrants the attention of this House.

My noble friend pointed out that the Minister for Crime Prevention, Mr Norman Baker, gave evidence to the European Scrutiny Committee on 16 October. The reason for the debate today is to consider how the House wishes to respond and whether it wishes to issue a reasoned opinion to the EU institutions.

The European Commission’s draft regulation and directive aim to strengthen the European Union’s ability to respond to new psychoactive substances. The new regulation will replace the existing EU instrument, council decision 2005/387/JHA. The directive is a consequential instrument for member states to enforce the regulation through appropriate criminal penalties for new psychoactive substances categorised as severe risk.

In recent years, new psychoactive substances—NPS or, as already referred to in this debate, legal highs—have rapidly changed the nature of the global drugs market.

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The noble Lord, Lord Rosser, made this point very well. Substances that are not under international control but mimic the effects of controlled substances are now widely available. They have the potential to pose serious risks to public health and safety. My noble friend Lord Sharkey highlighted recent cases and the tragic responses. The speed at which the market has developed, the wide availability and accessibility of NPS legal highs and the concern about their increasing use makes this a significant issue that is not just national or European but global in nature and requires collective action at all levels. We have a comprehensive and well recognised response to new psychoactive substances that covers early warning, legislation, demand reduction and treatment, as well as galvanising international co-operation and activity. I will come to that in a moment.

In our legislative approach, we have deployed generic definitions whereby entire families of drugs are brought under the Misuse of Drugs Act 1971. This approach has continued to place the UK in a much stronger and more durable position. Temporary class drug orders enable us to ban NPS in weeks rather than months where there is an immediate concern. Through these mechanisms, we have controlled the majority of NPS seen in the EU since 2005. Since 2010, we have controlled in excess of 200 new psychoactive substances including 15 currently under temporary control. That point was also made by the noble Lord, Lord Rosser.

While the EU-wide NPS identification and monitoring component has been very useful to us in complementing our own drug early warnings systems, it is harder to see the benefit of the risk assessment and banning process. To date, the requirement for member states to ban certain NPS has had little impact for the UK. Just 13 risk assessments have been conducted, and only nine NPS have been subject to this requirement, of which eight had already been controlled in the UK, including mephedrone.

As my noble friend Lord Bridgeman pointed out, the principle of subsidiarity is that decisions should be taken as close as possible to the citizen. As such, the EU should act only where it would add value. The Government are concerned that, as drafted, Article 4 of the regulation would fetter our discretion to respond flexibly to national issues with NPS as they arise. All noble Lords have made this point. The proposals are currently drafted under the Article 114 legal base, which is about internal markets and makes this a harmonisation measure, rather than setting out minimum standards under Title V.

Given that only 13 risk assessments have been conducted under the existing NPS instrument since 2005, it is difficult to see how, without significant additional resources in the early warning and risk assessment processes, the proposals will impact in any notable way on the NPS market. With many member states over the past four or so years bringing in extensive domestic measures to control such substances, the value of the potential control measures under the new proposals is unclear.

Beyond the concept that there is a legitimate trade in NPS that needs to be accepted and, indeed, protected, the fact that the UK has placed restrictions on the majority of NPS seen in the EU undermines the

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suggestion that the proposals would add value to the UK’s current approach. The noble Lord, Lord Hannay, pointed this out.

8.15 pm

The Commission’s argument is that one in five NPS has a legitimate purpose, for example, in industry. However, the UK’s experience is that such substances are the exception rather than the rule. In fact, out of more than 300 substances, we can identify only a handful: two as industrial cleaners and a few others, called piperazines, used in the preparation of medicines. Our current legislation has the flexibility to accommodate these substances by enabling their legitimate use in industry to continue while restricting wider availability. We are looking to challenge the Commission’s evidence base to understand how it came to its conclusion that there is a substantial legal use for NPS.

Given the lack of evidence for a legal trade in NPS, the Government believe there are strong arguments that the regulation, as well as the directive, should cite a JHA legal base. We also take the view that both of the proposals build on the police and judicial co-operation elements of the Schengen acquis and that our opt-out therefore applies. That said, it is important for me to emphasise that this does not necessarily mean we will opt out. We will need to look at the proposals on their merits. Key factors will be points about subsidiarity and the proportionality of the proposed measures.

I should like to pick up on one or two points made during this debate. As my noble friend Lord Sharkey pointed out, the UK has a strong position in dealing with these issues of NPS. For example, the Misuse of Drugs Act provides a flexible legislative framework to tackle immediate or potential health risks. Of the three main groups, more than 80% are banned in the UK. The latest annual report of the European Monitoring Centre on Drugs and Drug Addiction said that in 2011, there were 49 new drugs, but only 17 were reported more than once in the UK, out of which 14 were already controlled. In 2012, as the noble Lord, Lord Rosser, said, there were 73 new drugs, but only 18 were seen in the UK, all already controlled.

There are a couple of other measures. From 2011, the Home Office set up a response to legal highs, known as the forensic early-warning system. It detects new drugs in the UK through test purchasing and forensic work. It also informs the considerations of the Advisory Council on the Misuse of Drugs and our wider responses. We also have the drugs early-warning system.

Baroness Meacher: Will the Minister accept that the UK Border Agency, leading ACPO officers and many other officials and experts in the field will say that even if a new psychoactive substance is banned, that does not mean that children and young people all over the country are not getting it? They are. The UK Border Agency, for example, talked about its great big warehouse with mountains of little packages; it has no idea what is in those packages—just lots and lots of white powders. Those packages are seized from the post, but the UKBA says that it is a drop in the ocean: it is not touching it or scraping at the edge of the thing at all. Will the Minister accept that we do not and cannot

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control these new psychoactive substances because they are purchased on the web and delivered direct to children’s and young people’s homes? Therefore, we need a more sophisticated approach to this, which is why the European Union has come to the conclusion that we need to think about the low-risk substances—to differentiate, have a proportionate response and so on. It is just not good enough to say, “We have a system; it works”. The fact is that it does not; the Government’s people recognise that it is not working.

Lord Ahmad of Wimbledon: I thank the noble Baroness for her intervention and, of course, for the excellent work she does in her chairmanship of the APPG. I do not for a moment suggest—nor do the Government take this position—that everything can be controlled through such measures. She pointed to the internet: internet purchasing of NPS is quite low. I understand it is at the rate of about 2%. That said, there has to be an acceptance that, of course, banning something does not mean that a substance or a derivative of one will not get through. After all, these are derivatives of what already exists in the market and, as all noble Lords acknowledge, this is unfortunately a dynamic market and you can never control what new substances are coming. It is only possible when something is identified. However, currently we take account of the different representations made by different agencies and we work with EU partners in sharing information and good practice. That is something that the Government subscribe to. However, as the noble Baroness herself acknowledged in her contributions, the UK is far ahead of others in identifying and dealing with some of these matters. Of course, we ultimately need to ensure that we try to stop as quickly as possible these drugs that are coming on to our markets and streets and appearing in people’s homes. There is no doubt that challenges remain and we need to address them as they arise.

Finally, as I already said in acknowledging some of the noble Baroness’s remarks, the Government retain our position that the European Union has a role to play in tackling new psychoactive substances, but we are not convinced that the current measures will add value to the work that the UK is already doing and leading in this area.

Lord Hannay of Chiswick: In winding up this debate, I should like to thank all those who participated, particularly the two members of my sub-committee, the noble Lord, Lord Sharkey, and the noble Viscount, Lord Bridgeman, for their contributions. It is always a source of pleasure to find that the two Front Benches are in agreement with a cross-party committee such as ours. Therefore, there is clearly very broad support for tabling this reasoned opinion.

I listened with great care to my noble friend Lady Meacher, who is of course a major expert on these matters and who has made some extremely relevant observations about the difficulty of dealing with these psychoactive substances. She must be right when she says that we should not delude ourselves into thinking that because the Commission proposals are in our view not fulfilling subsidiarity and are disproportionate, we therefore have all the answers. We clearly do not have all the answers, and the Minister admitted that.

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The question that comes up under subsidiarity is: will action at the European Union level add value and be more effective? That is where these proposals fall down: we do not have a perfect system, but the one that is proposed could lead to quite difficult issues arising if, for example, great harm were found in the UK from one of these substances—if people died from it—and we were not able to take action. That would be damaging both to us in Britain and to the European Union.

I hope that when this matter comes to be dealt with in Brussels—whether or not we reach the threshold for the yellow card, as it is called, which is perhaps not certain— the Commission will take a very careful look. It will need to reply to this reasoned opinion we are making, whether it achieves the yellow card threshold or not. I hope that it takes a very careful look again at the decision-making processes that it proposes. There are elements in the proposal that are excellent; clearly the EMCDDA has a bigger role to play in these substances and I hope that it will be given more resources as the new budget arrangements come into effect from the beginning of next year. It would be a good thing if that happened, because it does excellent work and could greatly help member states with the action that they have to take in this field. Europol devotes quite a lot of its resources to drugs and clearly has a major role to play in breaking up the trafficking of these products and so on. However, we take issue with the decision-making process; that is the basis for the reasoned opinion and the basis on which I beg to move.

Motion agreed.

New Psychoactive Substances: Reasoned Opinion

Motion to Resolve

8.25 pm

Moved by Lord Hannay of Chiswick

To resolve that this House considers that the Commission proposal for a Regulation of the European Parliament and of the Council on new psychoactive substances (COM(2013)619, Council Document 13857/13) and the Commission proposal for a Directive of the European Parliament and of the Council amending Council Framework Decision 2004/757/JHA of 25 October 2004 laying down minimum provisions on the constituent elements of criminal acts and penalties in the field of illicit drug trafficking, as regards the definition of drug (COM(2013)618, Council Document 13865/13) do not comply with the principle of subsidiarity, for the reasons set out in the 6th Report of the European Union Committee, (HL Paper 73); and, in accordance with article 6 of the Protocol on the application of the principles of subsidiarity and proportionality, instructs the Clerk of the Parliaments to forward this reasoned opinion to the Presidents of the European institutions.

Motion agreed.

8.25 pm

Sitting suspended.

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Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Bill

Committee (2nd Day)(Continued)

8.36 pm

Amendment 154

Moved by Lord Monks

154: Clause 38, page 45, line 25, at end insert—

“( ) to offer ACAS conciliation between complainant and respondent before making an enforcement order”

Lord Monks (Lab): My Lords, Amendment 154 is designed to provide for ACAS to be able to intervene when there is a dispute about a register. ACAS has a very high reputation for intervening in difficult situations and finding its way through them. We think that there could be some difficult situations if the assurer gets going in a number of circumstances. With the agreement of the parties and the certification officer, it would be useful for ACAS to be deployed before an enforcement order is issued. I beg to move.

Baroness Donaghy (Lab): I shall speak briefly to the amendment. As the Committee will know, I was chair of ACAS from 2000 to 2007. To that extent, I suppose I have an interest in attracting work to my former organisation. If the Minister is correct in saying that the Government are not looking for confrontation in Part 3 of the Bill—some of us still need convincing of that—they will be looking for ways of avoiding the ultimate sanctions that are contained in Part 3. I think this offers a way out of an impasse. It might help the parties, particularly if there are difficulties in agreeing factual statements, if ACAS were to be invited to intervene. The Minister will know that, if this is not specified, ACAS will not be able to intervene. There needs to be a statutory requirement before it can become involved. It is important that this is written into the Bill. I support my noble friend Lord Monks on this amendment.

The Parliamentary Under-Secretary of State, Department for Business, Innovation and Skills (Viscount Younger of Leckie) (Con): My Lords, it is not entirely clear why this amendment is being proposed. I imagine that there could be concerns in relation to vexatious allegations or allegations by an employer seeking to undermine a trade union’s ability to take industrial action. In practice, where an inspector conducts an investigation, there is no complainant or respondent with respect to that investigation. It is not clear why ACAS conciliation between a union under investigation and a potential witness would ever be appropriate in the context of an investigation to establish whether a union was in breach of its duties under Section 24. Therefore, I hope that the noble Lord will feel able to withdraw his amendment.

Lord Monks: I am well beyond the hat-trick stage of getting disappointing replies this evening. I think that an opportunity is being missed here. ACAS could help to smooth the introduction of these measures, and I

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am sorry that the Government are not a bit more interested in this subject. However, I beg leave to withdraw the amendment.

Amendment 154 withdrawn.

Clause 38 agreed.

Clause 39: Enforcement

Amendment 155

Moved by Lord Monks

155: Clause 39, page 46, line 21, at end insert—

“( ) must specify to the unions the provisions with which he or she considers the trade union may have failed to comply and give preliminary written reasons for that view which are sufficient to enable the trade union to know the case it has to meet and to enable it to make representations to him or her;

( ) must disclose to the union any inspector’s report under section 24ZI in sufficient time for it to address that report in any written representations”

Lord Monks: My Lords, Amendments 155 and 156 stress the need to give unions adequate opportunity to make representations before enforcement action is taken. It gives them the chance to see what is in an inspector’s report before the certification officer is called upon to declare that a union has failed to comply with its duties. In other words, they are given a chance to put things right before being arraigned before the registrar of trade unions, who is the certification officer. Providing a chance to put things right before things become public and perhaps more entrenched seems to us to be a matter of good procedure in this kind of case. I think it is a useful suggestion and I should like to hear what the Minister has to say about it. I beg to move.

Lord Stevenson of Balmacara (Lab): My Lords, during the break I had a look back over the points that we have been making to the Government. A bit like my noble friend Lord Monks, I am slightly surprised that the Government have taken such an aggressive line towards what we are saying. If the Minister recalls my contribution to the debate on the group before this, I was saying—I thought in as conciliatory a manner as possible—that we were trying to offer a series of improvements to what we think is a bad Bill. However, not a single one of them was taken up.

In our opening two debates, I asked a total of, I think, 14 questions. I have not had answers to any of them and I am under pressure from my colleagues here to keep pushing the Minister to come back with at least some general responses if he cannot give detailed ones. However, I can hope—because I know that he is an honourable and decent person—that I will get a letter at a later date that perhaps covers them. I hope that that will be the case.

On the ACAS amendment, which was meant in the spirit of support—there was no particular difference of principle here—all we got was, “I can’t really understand why the Opposition would bother putting up this amendment”. When some of these amendments were put forward in the other place, we at least had a decent reply from the Minister. Although he did not accept all of them, he did accept one or two points, and at

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least there was a sense of dialogue and debate. I am very disappointed at the way that this session has gone today. I hope very much that, when he comes to reply, the Minister will make a considered response to the points raised by my noble friend.

Viscount Younger of Leckie: Perhaps I may attempt to lower the temperature slightly. There was certainly no intention of being peremptory, particularly with the short response that I gave on the previous group of amendments. I can only say that, if it would be helpful, I would be more than happy to write to the noble Lord and indeed to the noble Lord, Lord Monks, with some further details on that reply, which I took as read as being rather short. There was absolutely no intention of dismissing it, if that was implicit in the noble Lord’s reply.

As for the questions that the noble Lord, Lord Stevenson, has raised during the debate today, which I much enjoyed, I have already pledged to write to him to answer any questions that he has raised. Indeed, he has raised quite a few, so I hope he will accept the fact that I write letters and like to get into the detail. The very least I can do is answer the questions clearly and fully, and also address some of the concerns of the noble Lord, Lord Monks. I hope that that is very clear to the House today.

8.45 pm

I shall now respond to Amendments 155 and 156, which seem intended to make it explicit that before the certification officer may make a declaration that a trade union is not complying with its duties in relation to the membership register, the trade union must know the reasons why. The amendments also require the certification officer to disclose an inspector’s report to the union. This is so that the union can make effective representations on the case against it before the certification officer makes any decision. I am happy to reassure noble Lords that this is already covered by current law and what is in this Bill. A union will have the opportunity to present its case in written representations to the certification officer before a declaration is made. The certification officer may also allow the union to make oral representations.

Unions, like other bodies, are entitled to a fair and public hearing, within a reasonable time, by an independent and impartial tribunal. This is required by Article 6(1) of the European Convention on Human Rights, and is met in the Bill’s enforcement provisions. In practice, a union may have several chances to reply to any allegations and put forward a defence. Any inspector appointed is likely to make a series of inquiries, which will include dealing with the union directly, before providing a report to the certification officer. If the inspector’s report suggests that there is evidence of a problem, the union still has a formal opportunity to present its case before any declaration is made. The union would not be able to do this without seeing the evidence, including relevant sections of the inspector’s report. So this is the practical effect of what is already in the Bill.

Finally, the union can appeal decisions of the certification officer to the Employment Appeal Tribunal. I am confident that the current provisions give unions

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plenty of opportunities to put forward a defence before any declaration is issued, and I hope that the noble Lord will withdraw his amendment.

Lord Monks: My Lords, that was a rather legalistic reply. The Government are taking a rigid approach to this. I am sure that the whole thing is a sledgehammer to crack a nut, completely disproportionate to any problems with union administration that may exist in the fertile imagination of noble Lords on the other Benches. Anyway, the Minister has told us straight that he is going to stick to the provisions of the Bill and that he does not find the amendment particularly to his liking. I beg leave to withdraw the amendment.

Amendment 155 withdrawn.

Amendment 156 not moved.

Clause 39 agreed.

Amendment 156A

Moved by Lord Monks

156A: After Clause 39, insert the following new Clause—

“Part 3: Commencement

The provisions in this Part shall not come into force until the Secretary of State has placed in the Libraries of both houses a review of the burden of regulatory responsibility that this Part will place on trade unions, including any necessary rule changes and their timeframe.”

Lord Monks: My Lords, this is an important amendment on an important topic, on which other amendments have been tabled in the names of my noble friends Lord Whitty and Lord Lea. It is important that union administration processes are taken into account in introducing this legislation, and Amendment 156A suggests that the Act should not come into force until the Secretary of State has placed in the Libraries of both Houses a review of the burden of regulatory responsibility that Part 3 will place on unions, including the need for them to make rule changes and the timescale for doing that.

The purpose is to give unions adequate time to comply in a way that is cost effective, economical and practical from their point of view. It is very much in line with the Regulatory Policy Committee report that we discussed earlier at some length and which drew attention to the lack of reliable information on the increased burden imposed on unions. That was one of its major reasons for giving the Government the red card in its report and on the whole exercise.

It also highlights the fact that unions have these procedures for making changes in their constitution, and it will be necessary, as the Bill recognises, that unions will have to make some changes to the rules. In the union that I was familiar with, a rules revision conference was held every few years. Often the Government of the day were sensitive to the union timetables, and so on, particularly on a matter such as this. It hardly seems a matter of life and death, even to the aficionados on the other side, in terms of the importance that the Government attach to it. We know already that the BIS estimate of around £461,000

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is an underestimate. It will cost unions a lot more than that. Before the Bill is enacted we need a better idea of the costs that will be incurred. We need an approach that is reflective of the union’s need to take steps to comply with the law properly and effectively. I mention again the need to keep costs down.

I am sympathetic to the amendments in the name of my noble friends. They seek to specify a time limit, which would be useful. Some unions have longer timescales for making changes. I mentioned one that did it every few years. I hope that we will get sympathetic and sensitive understanding, especially given the complete lack of information in the impact assessment, as pointed out by the Regulatory Reform Committee, on the Government’s figures and the regulatory burden being put on unions. They are shoving a load of red tape on to unions and it is important to give the unions at least a period of digestion that errs on the side of minimising a little bit of that red tape. I beg to move.

Lord Lea of Crondall (Lab): My Lords, in the course of thinking about this last week I went to the Public Bill Office. I do not know whether I should mention the clerk’s name, but it was Simon Burton and he is right there. I wrote something down and asked whether we could put 1 January 2116. He said, “2116?”. I said, “Yes”, and he said, “Don’t you mean 2016?”. I said, “Oh, I probably do, but hang about a minute, why not make it 2116?”, but I chickened out.

Anyway, the more this discussion goes on today, the more obvious it is that we are juggling lots of timescales and deficiencies in the procedure so far, such as no pre-legislative scrutiny, no scrutiny by the Constitution Committee of the House of Lords, no discussion of post-legislative scrutiny, and so on. Yet, everybody knows, and the Minister has said it several times, that ostensibly it is because of the difficulties that unions have in getting their membership lists up to date. I wonder why that is not true of electoral rolls, but let us stay with what we are on. This will take some time, so what is the connection between that and commencement dates?

The other point that I want to bring into this discussion concerns the pause. The pause for Part 2 has been for a particular purpose, but the pause in Part 3 is simply a consequence of the pause on Part 2. I do not know why the Minister is looking puzzled, but there is de facto a pause before we have the next discussion at the same time as Report of the Bill. Am I not right? Yes, of course. That is how it is. So, between now and the new year all sorts of people, including the Cross-Benchers and so on, will be thinking about all sorts of ideas.

In the middle of this I happened to read, being an insomniac, a very interesting discussion in the Moses Room led by the noble Lord, Lord Norton of Louth, on the importance of commencement dates. Indeed, I noticed that my noble friend Lady Royall took part in that discussion. I was quite amazed that commencement dates are a key part of our constitution, but even Ministers sometimes do not know who takes the decision. Certainly as often as not there is no further parliamentary discussion or decision on them, yet I suppose that we could find, for the anoraks on these matters, some reference to the Joint Committee on Statutory Instruments

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and so on. Therefore, I think that we could bring into the mix the problems that have been mentioned for our consideration between now and the new year.

This thing is half-baked. One of the reasons it is half-baked is that it should be in the oven for at least an hour but has only been in for 20 minutes. That is one of the reasons it is half-baked. We should take this in the spirit that it is intended—namely, where should commencement dates come in the Bill? Obviously, we are not advocating that we pass legislation that is never implemented. That is, however, not as stupid a comment as one might think because apparently a huge amount of legislation is never implemented. Just read the report of the noble Lord, Lord Norton. He was the chairman of the commission on this very question. That might be nice, as I say, or implemented in 2116.

De facto, I thought somebody might notice that there is a general election coming up between now and 2016. All I would say about that is—and it cuts both ways—in 2016 and those sorts of periods, people will at least not be thinking all the time about how these matters may affect a general election. They are matters that have a serious footprint into the trade union movement, as we demonstrated this evening, including all the different timetables of changing union rules. The Minister may not have tried to deny that, but he did not appreciate that one cannot simply go to the next conference in Blackpool and say, “We’ll put a rules revision on the agenda”. There are rules for the procedures and timings of rules revision conferences.

Therefore, I think at the moment—there is no voting this evening—we would like to link this proposition with the one that my noble friend Lord Monks referred to. We are trying to relate this, with considerable difficulty, to the realities on the ground. If something in this field is to be done, it has got to be done within a timescale that allows for post-legislative scrutiny. I will ask the Minister a specific question about that. Where does post-legislative scrutiny now fit into his conception of where we will be going on this? I look forward to his comments.

9 pm

Lord Whitty (Lab): My Lords, the Government would be wise to accept at least some of the spirit of these amendments. The first of the amendments deals with the whole issue of getting a better grip on what the impact really is. We have had a pathetic impact assessment put before us—one that bears no relation to any costs that any of the trade unions, whatever their persuasion on other matters may be, would recognise. We have not managed to assess what the impact would be on the resources and costs of the certification officers. We have a pause now in which the Government could put that right so that the next time we come to debate the issue we will have more robust figures, perhaps some degree of consensus about what it means and at least a range of figures we could sensibly talk about. At the moment we have virtually none of that.

The heaviest comment on it has been the Regulatory Reform Committee’s view that all of this is unsupported in the normal way in which we approach new regulation. The Government have got to get out from under that at some point and they have time to do it. Therefore

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the requirement in the amendment of my noble friend Lord Monks that more information should be put in the Library before we return to this issue on Report would be sensible from everyone’s point of view, particularly that of the Government.

As to the commencement date, obviously the Government are reluctant to put in a later commencement date than they would like. On the other hand, put at its gentlest, we know that the Bill is a bit of a mess—and not only this part. There is serious criticism of the scope of Part 1 and very serious criticism, concern and widespread apprehension about Part 2. By being gung-ho and requiring that nearly all of the clauses within the Bill should come into effect immediately the Act is passed, the Government do not serve their cause well. They certainly do not serve well the cause of implementing any part of the Bill because they will need to take a large chunk of civic society with them, including in this respect the trade unions and in other respects a wide range of organisations.

It is therefore not sensible for the effect of 90% of the Bill to start on day one. The Government will come back and say that that is not really what it means because from day one they can draw up the secondary legislation, and so in that sense it is the secondary legislation that will have a commencement date. That is all very well but, given that there are controversial issues such as this in all three parts of the Bill and that we have not seen any draft secondary legislation—and will not see any by the time we reach Report, as I understand it—a judgment by ourselves cannot be made and, more importantly, cannot be made by those organisations that are affected by each of the three parts of the Bill. A later commencement date for the whole of the Bill, with proper consultation on the secondary legislation, would be a sensible move.

Of course, there is such a thing as a general election. I hesitate to return to an earlier discussion, provoked by the noble Lord, Lord Tyler—I nearly called him “my noble friend”—that revealed that there was at least some suspicion or understanding that this would affect political funding. However, if that is the case and it is an important motivation for the Bill—and if the Government refuse to go further than the rather Delphic statement that the Minister repeated at least twice, which got us no further down the line—we know that there is not going to be a deal between the parties on political funding this side of the election. However, whatever our backgrounds, we all recognise that there is a possibility at some point we will have to change the rules in relation to political funding generally. The only way we can do that is by consensus. We will not do it before an election but whoever wins the election might be in a position to do it afterwards. That is an important consideration. If, so close to an election, the Government appear to be taking pre-emptive action on this front, affecting one party only, the possibility of a multiparty agreement will become more remote after the election.

In a sense, that is a separate argument. I am trying to look at it in part from the Government’s point of view, as they seek to deliver this with a reasonable amount of support from civic society. In any case, they will need to think of a fairly long timescale for implementation. If they do not, they will be in trouble

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not only with the trade unions, but with a large chunk of civic society and those who expected this Government to deliver on lobbying in way that actually adds up to something. In that case, the Bill will be seen as a damp squib on the one hand and a provocation on the other. I do not think that this is in the Government’s interests.

I suggest that the Minister should take this back to his colleagues, talk to them and agree that we should have a somewhat later commencement date—probably for all three sections of the Bill but certainly for this one.

Lord Stevenson of Balmacara: My Lords, as has been made evident from the speeches that we have heard, this is about ensuring that, should the Bill progress and be brought into law, it will operate with a reasonable chance of success. As we have heard, it puts additional red tape on a number of bodies which are technically independent. They are part of civic society admittedly, but not those which are necessarily controlled by any one group. They are self-governing or self-operating, so it will take time for it to be absorbed.

There are new procedures and assurers—if that is what they are to be called, it is an ugly name—who will need to be nominated on a list to be promulgated. There have to be appointments made, new reporting processes brought in and inspections, and all sorts of procedures relate to that. We have a plethora of activity and burdens on trade unions that need to be bedded in. If the Government were thinking about the effectiveness and efficiency of the operations, it makes sense to give it time to bed in and get the best chance.

We have also heard from those who know—and perhaps they know a lot better than those who are advising Ministers—about the practical difficulties of trying to get changes into all these independent bodies in sufficient time and on an appropriate scale in order that the legislation can be made to work effectively. What does a bit of a delay cost us? We might return to that.

This is also about trying to do legislation properly. I made plain in my earlier remarks that the Minister’s letter-writing needs will prey heavily on his mind over the next week or two, because of all my questions. About seven of them were about the report from the Regulatory Policy Committee on the impact assessment. I will run over one or two of them, because they raise issues that are not susceptible to the timescale to which we are told the Bill is being progressed. In effect, what was called for was a new impact assessment. I asked the Minister whether we will have one, but he did not respond.