24 February 2016

Peers from across parties yesterday (23 February 2016) objected to the government’s argument that publishing details around unions’ political funds and facility time were principally proposed to encourage “transparency”, countering that new legislation put forth by the Conservatives represents a slippery slope to further restrictions on trade unions.

On the Trade Union Bill’s third day of Committee Stage in the House of Lords, peers focused on Clauses 11 and 12, which instruct trade unions to publish detailed information on political expenditure; and ask public sector employers to report on both money and time spent on trade union facility time. Clause 13 provides reserve powers for the Secretary of State to impose a cap on facility time in the public sector through secondary legislation.

The government claims that each of Clauses 11 and 12 exist to promote transparency, arguing that the public and members of trade unions have a right to know how trade union funds and taxpayers’ money is spent.

However, peers highlighted that the level of detailed reporting the Bill requires of trade unions is far higher than that of other membership organisations, and many suspected the publication of information was part of a wider agenda to impose further restrictions on the movement.

Redefining objects of political expenditure

Lord Collins of Highbury, a Labour peer, moved an amendment to insert a new Clause into the Bill, which redefines what objects can be considered to be political expenditure. This is an important move considering that the Tories are attempting to force trade union members to opt-in rather than out of political funds (in Clause 10 of the Bill) and are asking trade unions to report all political expenditure over £2,000 (Clause 11 of the Bill).

The peer proposed excluding campaigns that encourage participation in elections (regardless of the party voted for), campaigns against racism and extremism, and campaigns not to vote for a particular party or candidate.

He said unions being able to have a collective political voice is an important part of a fair democracy.

“It is not that they simply disaggregate views; their purpose is to gain strength by having a collective voice, so that the voice of the individual is amplified strongly in society. That is what the political funds have been so important in doing,” he explained.

He also highlighted that campaigns run by trade unions have been instrumental in encouraging equality in public office by encouraging more marginalised groups to participate in the political process.

This point was further expanded by Lord Hain, also a Labour peer, who reminded the House that the trade union movement had an essential role in past anti-apartheid and anti-Nazi campaigns. Labour’s Lord Morris of Handsworth added that the trade unions are well-placed to support the UK’s fight against the radicalisation of its citizens.

Lord Collins described the proposals as “anti-democratic” and “imposing restrictions on civil society that would not be tolerated in many other countries”. He added that the legislation could potentially silence opposition to the Conservative Party.

Liberal Democrat peer Lord Oates stated that even though trade unions have run campaigns against his own party, he would stand for their right to do so as part of the democratic process. He added that if any restrictions are applied to political funding, then they must be made fairly across the board, but that the Bill was leaning too heavily on the left while leaving the Tories unscathed.

“As we are all aware, it is the Conservative Party which has massive dominance in terms of finance and which poses the real threat to people’s participation in a fair and equal way,” Lord Oates said. “That is the problem. In its manifesto the Conservative Party said that it believes in all-party talks on funding reform but it has done nothing to bring those forward.”

Parliamentary Under-Secretary of State for Business Baroness Neville-Rolfe responded on behalf of the government that the purpose of the proposals was to increase transparency, not to limit political spending by unions.

Lord Harris of Haringey, for Labour, pointed out that this level of “transparency” was not, however, expected for other membership organisations.

Clause 11: Union’s annual return to include details of political expenditure

Lord Collins moved an amendment to increase the threshold for political expenditure that must be reported to the Certification Officer from £2,000 to £50,000. The government has argued that spending must be reported in such detail in order that members of trade unions know how the political fund is used.

The Labour peer stated that the bureaucracy imposed on trade unions if they were expected to report on all political expenditure of £2,000 or more was excessive and at a level not required of other organisations, pointing out that unions would be expected under these rules to report on things such as hotel bookings and stalls at conferences.

“There could be a huge amount of specific detail which will not add to the member’s ability to make an informed choice about whether they participate in the political fund or not: it is purely more regulation,” he argued.

Several other peers agreed with his view, with many highlighting that the number of invoices the Certification Officer would be expected to inspect would be huge if the threshold was set at £2,000.

Lord Stoneham of Droxford, a Liberal Democrat, described this as “mammoth and unnecessary bureaucracy”.

Baroness Donaghy, of Labour, pointed out that other membership organisations are not expected to be quite so "transparent" about where their money goes.

“This is not even-handed, as the Government claim,” she said. “It might apply to employers’ associations in theory. However, none of the 94 employers’ associations listed by the Certification Officer currently has a political fund—not one. Instead, companies choose to make political donations individually or via other channels.”

Lord Collins pointed out that the proposed regulations are unnecessary, asking: “What does the Minister think is broken? She seemed to suggest that somehow there is hidden spending that members do not know about.”

He countered that union members are very aware that political funds contribute to political parties and they are clear about when that money is intended for the Labour Party, but that some trade unionists decide to contribute to the fund even if they do not support the Party in question.

“I happen to know somebody who was a member of the Conservative Party, became a Conservative MP and continued to pay the political levy because he thought that it was right to do so given the role that trade unions play in civil society,” he illustrated.

Clause 12: Publication requirements for facility time

Clause 12 relates to publication requirements around facility time. Baroness Neville-Rolfe began the debate by assuring the House that the government will provide clarity over which public sector employers will be expected to report on facility time, and that certainly employers with fewer than 50 employees will be exempt.

Baroness Hayter of Kentish Town, a Labour peer, described Clauses 12 and 13 as “some of the most pernicious in this rather nasty little Bill”.

“Why? They undermine good industrial relations - we are talking about facility time. They give enormous and unnecessary powers to Ministers over areas that are none of their business; they were introduced without proper consultation — just a rather hurried, minor one over the summer, in contradiction to Cabinet Office guidelines on consultation; they are not based on any evidence; they have not been demanded by public sector employers; oh — and they were not in the Conservative manifesto.”

She argued that any agreement over facility time should be left up to managers to decide, not up to central government, and pointed out that the information published on facility time would “show nothing”.

“A high level of facility time might be needed where lots of meetings are taking place because of large-scale redundancies, mergers, relocation or indeed sudden scale-ups following flooding or foot and mouth disease,” she pointed out.

“What does a high level of facility time for safety and union reps indicate? It could indicate really meaningful negotiation on new standards, job evaluation or workplace education, or it could indicate poor management causing lots of grievances and sicknesses,” Baroness Hayter explained.

However, she suspected that the government would likely try to blame all high levels of facility time on “lazy union reps” in the public sector not doing their contractual duty.

While Tory peers once again put the Clause down to a need for transparency, many Lords were concerned that the regulations were part of a larger agenda. Lord Beecham, a Labour peer, described them as “the first installment in an installment plan to dilute further the position of trade unions and their capacity adequately to represent their members”.

He pointed out that 91% of public healthcare service managers trust trade union representatives to act with honesty and integrity, yet the government felt their activity should be monitored.

Baroness Hayter added that the Bill's explanatory notes state that facility time should be published “to encourage those employers to moderate the amount of money spent on facility time”, so the government cannot pretend that the Clause is only about transparency as it is clearly geared toward cutting down on trade union activities.

Lord Harris of Haringey, for Labour, added that facility time should not been seen as something that only benefits employees and employers, but also the public, particularly in the NHS and local government where good health and safety and training - supported by trade union representatives - is essential to public service and safety.

Indeed, Lord Balfe, a Conservative peer himself, was also moved to stand against his party, as he said the Tories’ use of the phrase “taxpayer subsidy” to describe paying for facility time is a nonsense. Local authorities are in fact legally obliged to have facility agreements and involve trade unions in a wide range of activities, so it cannot be seen as a burden on the taxpayer for the employer to follow the law.

“By all means let us have transparency. That is a good thing,” he said. “But let us not use transparency as a weapon to try to force out the best of what we have had.”

Another Conservative peer, Lord Deben, also sided with Baroness Hayter’s criticism of the government’s reliance on evidence from organisations such as the Taxpayers’ Alliance, some of which was used in the impact assessment for the Trade Union Bill.

“I share very much the Minister’s point about anything that starts with a comment from the TaxPayers’ Alliance, which means that it is probably fallacious,” he said. “Its use of words, and certainly of figures, is almost universally to be questioned.”

Baroness Hayter also highlighted that the government was demonstrating double standards in its approval of organizations, like the Taxpayers’ Alliance, that wish to influence political thinking.

“I am beginning to wonder why this Government can seem to jump and follow when those outside bodies try to influence them, but somehow when trade unions or charities want to do the same it gets them very nervous,” she pointed out.

Excluding health and safety activity from facility time reports

The debate then turned to an amendment also put forth by Baroness Hayter, which would exclude health and safety rep activity from being included in facility time calculations. These trade unionists, most peers agreed, are essential to ensuring the well-being of both employees and the public and should not be vulnerable to “moderation” through Clause 12 or an absolute cap through Clause 13.

Lord McKenzie of Luton, for Labour, added that the work of health and safety representatives is not in fact strictly seen as facility time, as it is a separate legal requirement of the Health and Safety at Work etc. Act of 1974 and is also included in the European framework directive.

He added that including health and safety representatives in the facility time measures had an ulterior motive, too.

“The mischief is that the Government are saying that health and safety reps can have as much time off as they need, but the total amount of time that a union can have off will be capped, so the Government are trying to force unions to restrict the time themselves by saying that time spent by health and safety reps will come off the time available to other representatives,” he explained.

Baroness Donaghy added that she felt union learning reps should also be excluded from the Clause, as they contribute so much to improving skills such as literacy and numeracy in the community.

Speaking for the government, Baroness Neville-Rolfe replied that she believed all time taken by any rep should be reported, and included in any cap that could be imposed by Clause 13.

“The way that I see it is that the benefits of transparency and accountability do not vary according to the type of work undertaken by, or designation of, a union representative engaged on facility time,” she stated.