My Lords, I, too, thank the Minister for introducing her amendments at this stage. They are critical, in the light of some of our debates in Committee. I repeat what my noble friend Lady Donaghy said: where is the evidence for the requirement for this change of role? I repeat what I said in Committee: the Certification Officer has played a vital role in securing and ensuring that the rights of trade union members are upheld in their union. As the noble Lord, Lord Bridges, said, it is—or should be—about the rights of those individual members. The sad fact is that the proposals in the Bill in relation to the powers of the Certification Officer are changing that role from a quasi-judicial officer who adjudicates on disputes between unions and their members to a full enforcement agency, with wide-ranging powers to intervene in the internal, democratic decisions of trade unions. This would not be at the behest of individual members but, possibly, at the behest of employers and other campaign groups, even though no union member has complained. This completely changes the role of the Certification Officer.
We have repeatedly spoken about evidence. This brings me to another point, about the sanctions or fines which the Government intend to allow the Certification Officer to impose. In my 35 years of dealing with the Certification Officer, and having read every single annual report over the past 35 years, I have not seen one case where the Certification Office has given an order that has not been complied with. Of course, that related to union rules, but what we are now seeing is this role moving into industrial relations, because it will deal with industrial action. It is moving into membership registers and the details of membership information, which, again, could be subject to complaints from others rather than just simply members querying their own records.
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In Committee, many noble Lords, including the noble Lord, Lord Pannick—and I am pleased to see him in his place—raised this issue in the context of freedom of association and the very clear impact that it might have on our ability to meet the test of the European Convention on Human Rights. While many noble Lords will support other elements of the Bill in relation to, perhaps, the industrial action ballots—and there might be reasons for the Government saying that there needs to be a legitimate mandate on a particular industrial action ballot—what the Government are doing here is fundamentally intervening in the right of the freedom of association. For me, the real test of any democratic society is that right of freedom of association. You can have many democratic constitutions that are not upheld and are challenged by free organisations, and that test could be failed in this context because we are appearing to say that the state has the right to say how a union agrees its constitution and determines its democratic structure. It will be tested at regular intervals by complaints other than those of the individual members, so it will not be upholding the rights of the individual member of a union.
The Equality and Human Rights Commission has warned that the Certification Officer’s ability to instigate complaints as far as investigating and adjudicating them compromises the impartiality. I welcome the Government’s amendment to allow for appeals on all decisions of the Certification Officer to the EAT. I welcome that very much: it addresses not only our concerns, but those of the Equality and Human Rights Commission. I am pleased with that, but as my noble friend Lady Donaghy has said, this is actually imposing even greater regulation and greater costs—because all of these things will impose a cost—and it will certainly increase the involvement of the law and lawyers in the role and running of trade unions. With the greatest respect to noble and learned Lords, and the noble Lord, Lord Pannick, I do not think that it is a good idea that lawyers interfere with the democratic organisation of working people. It is for them to determine their own structures.
That comes back to the point made by my noble friend: the role of the Certification Officer is being changed from upholding the rights of trade union members. It is being changed and politicised. It becomes political because the Certification Officer will be responsible for implementing some of the policies of the Government. The evidence—and this has been mentioned by my noble friend and other noble Lords—of the current Certification Officer to the Select Committee was incredibly important on this. Even though the Government have now tabled an amendment regarding the trigger for investigations, which I welcome, his greatest fear was that if he cannot establish that he has properly considered a complaint, any complainant—it would not be a member of the union but, possibly, an employer—may seek judicial review. I hope that the Minister can assure us that her amendment will mitigate adequately against that risk, which the existing Certification Officer identified, about whether he considers investigating a complaint.
This turning of the Certification Officer into a more political role leads to the issues that I have raised in my amendment today. As noble Lords have raised it in the debate, I hope that the Minister can give full reassurance on this. It is about the independence of the Certification Officer and the way that the Certification Officer is appointed. I know that some of these issues cannot be addressed in the Bill. However, I hope that she will make explicit some of the assurances that she has given me and my colleagues—my noble friends on the Bill team—about how that appointment will meet proper public appointments processes and how the independence of the CO can be guaranteed, particularly from Governments determining what they do or do not like when it comes to industrial relations. As I have said, the “reasonable grounds” process which the Minister has put into government Amendment 23A will address some of those concerns, but I would like her to give those assurances, including on the appeal to the EAT.
I want to come on to costs, which have been raised in the debate, because there is a tendency somehow to separate them. We have heard noble Lords talk about tax. In fact, in an earlier debate we heard that charities should not expend money that comes from the taxpayer on campaigning, yet this Government see union money as somehow not linked to those union contributions
made by millions of ordinary working people. Those union contributions, which we have talked about, are made by low-paid workers paying £1 a week. Even the so-called impact assessment that was published said that the additional costs of this extension to the Certification Officer’s powers—at a time when we are trying to cut the cost of regulation and the state—will be an increase of £1.9 million a year. I hope that the Minister can assure me on some of these issues because she needs to understand that that cost will come out of the pockets of ordinary working people who are contributing £1 or £2 a week. It is not some big corporation that is making a profit doing this or some monopoly that has been given the power to make money at the expense of the consumer; it is ordinary working people.
I want the Minister to give some clear assurances about the power to impose the levy: about how trade unions will be properly consulted on it, and how its costs are to be properly measured and limited. I would like her to do so particularly as it relates to the cost of investigation, because these new powers result in powers to appoint internal investigators. I hope that she can give us some assurance about where those costs for those external investigators will come from.
We have made huge progress on this issue, but I regret that the Government are continuing to push, particularly with the imposition of penalties. Over the past 35 years, there is no evidence of the need for them. There has not been a single occasion when the Certification Officer has made an order that has not been complied with. I am sorry to bang on for so long on this issue, but it is about fundamental rights of association and of freedom of association and about concern about the state interfering in the free organisation of trade unions in this country. I look forward to hearing the Minister’s response.