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The Court made a clear decision that ASLEF’s action was legitimate. To return to the point made by the hon. Member for Hemel Hempstead (Mike Penning), I should emphasise that the Court said that unions must remain free to decide in accordance with union rules; that is an important conditioner of union behaviour and of what the law means. The Court’s decision was unequivocal. It went on to say that any restriction on a union’s right to expel should be proportionate.

Let me concede at this point that the Government’s intentions have been proper: to make domestic law consistent with the judgment of the ECHR. Nothing lies between the Minister and other Labour Members—and, I hope, others across the House—in wanting that ambition to be achieved. As I said, when it made its first progress in the House of Lords, the Bill had a form of words that would have been acceptable to all parties, certainly to the Government and Labour Members. At that point the Government view was, rightly, that the combination of existing statute, union rule books, unions’ legal obligation to conform to their rule books, and the capacity of the certification officer to rule on what the unions did, provided adequate protection against arbitrary or unfair expulsion or a refusal to accept for membership not BNP members but Conservative trade unionists, perhaps, or those from certain religious backgrounds.

There is already protection against such arbitrariness in the law, save where it is clear in the rule book that that expulsion can take place in a way that is consistent with that rule book. I would say to the hon. Member for Hemel Hempstead that under the clause as it stands, or under the amendment, the capacity of the union to change its rules to expel a member of the Labour party, for example, still exists. Under any of these formulations, it would be possible for a union to expel a member for political or other reasons as long as that was consistent with the rules.

However, it is almost inconceivable that that would take place in a society such as ours. There is no evidence that any member of the Conservative party has ever been expelled by any trade union—the Fire Brigades Union or any other—or that people have been expelled from trade unions for being members of the Labour party. That is because the values of the Conservative party, even though I do not share them, are consistent with the objectives of British trade unions—as are, clearly, the values of the Labour party. There is no inconsistency there; the inconsistency comes with a
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party that is avowedly fascist and does not share the ambitions of the trade unions for equality among their members—those who are black or Asian, as well as those who are not black or Asian or are from any other minority ethnic community but share the anti-racist values of those unions.

The problem with the amendments that the Government accepted in the House of Lords is that they have moved the agenda on to give too much protection to the individual who feels disgruntled by this process at the expense of the rights of the collective. In particular, these changes ignore the general principle of the right of any organisation—political party, charity or trade union—to freedom of association or freedom not to associate. The interests of an individual fascist who does not want to be a member of the same union as black, Jewish or Asian colleagues are put ahead of the rights of those black, Jewish or Asian colleagues not to want to be a member of a trade union with a fascist involved. That is an important freedom that is being eroded.

Mike Penning: The problem is that picking on a specific party—I do not want to give it too much oxygen—does not prevent someone who is openly fascist from being a member of a trade union. The danger lies in picking on a political party rather than an individual. As I understand it, this is not about the BNP but about abhorrent views of individuals. That is where the provisions should be much tighter.

Tony Lloyd: I am not sure whether the hon. Gentleman is disagreeing with me, but perhaps that is because I did not properly understand what he was saying.

Let me go back to the expulsion of Jay Lee. The question now arises whether the way in which he was expelled by ASLEF would be consistent with the law as it will be under the Bill as drafted. Jay Lee was a member of the BNP—there is no ambiguity about that. ASLEF’s rule book says that

That focuses more on racism than on naming the BNP, and there are good reasons for not naming the BNP. ASLEF’s rules clearly state that membership of ASLEF is incompatible with being a member of a fascist organisation. Jay Lee undoubtedly was such a person, and ASLEF resolved at its conference to expel him. That was consistent with its rule book, and the European Court held that it was a legitimate and legal thing for it to do.

7.45 pm

It is arguable under the Bill as it stands that because the union rule book does not mention the BNP by name, it would not be possible to have expelled Jay Lee from ASLEF. I think that the hon. Member for Hemel Hempstead was with me in saying that we should be considering fascists, not just members of the BNP. In that case, he may find himself, surprisingly, on the same side as me in hoping that the Government will move on this. It is likely that the situation involving Jay Lee would still be found under domestic law to be outside the law, even though the European Court has clearly
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determined that it is within the terms of the European convention on human rights and therefore European law. There is a potential contradiction between the Bill and our existing law, which is of course guided by the European convention.

Clause 19(2) states:

It also says that such conduct is allowable only if membership of a named political party is in the union’s rule book or objectives. The problem is that it is not beyond the realms of credibility for a political party, the BNP or any other, continually to go through the game of changing its name—to BNP 08, BNP 09, the NBP, the PNB, whatever it may be—so as to always be one step ahead of any union rule book. Almost inevitably, the ability to change a union’s rule book is not an instantaneous process. This is not Adam Smith’s invisible hand—it has to take place at certain moments. I therefore fear that the fascist party can always be one step ahead of the union.

Mr. McFadden: I am reluctant to intervene on my hon. Friend, because I am conscious that I am going to get my chance to speak later, but he is making an important point. It is not the Government’s view that the clause requires the union to name the political party in its rule book. The clause says that this is about

if that membership is contrary to the rules and objectives of the union. It is the membership of the political party that would be contrary to the rules and objectives of the union. That does not mean that the party has to be named, but there is a contrast between membership of that party and the general ideological position as set out by the union in its rules and objectives.

Tony Lloyd: I am grateful to my hon. Friend. I know that part of the difference between us is how this is interpreted. I am not concerned about whether he says that that is his intention but about whether the words in the Bill will be interpreted in that way by a tribunal or a court. [ Interruption . ] I can hear my hon. Friend the Member for Hendon (Mr. Dismore) muttering from a sedentary position. I will give way to him in a few moments if he wishes.

A considerable and serious body of legal opinion has considered this and said that what the Minister has set out will not be how the Bill is interpreted and that there is ambiguity in its wording.

Mr. Graham Stuart: I am grateful to the hon. Gentleman for giving way, and he is making a persuasive argument, but I put it to him that for many—including me, I suppose—the impact of communism was just as evil and damaging as that of fascism. I ask him to beware of the way in which this power might be used. It might be perfectly possible for a union in right-of-centre hands to proscribe membership of the Communist party, or any other party that is considered extreme at the time. I also put it to the hon. Gentleman that, unlike a church or a
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club, trade unionism is directly linked to someone’s employment and means of making a living. It is in a different category, and I ask him to reconsider.

Tony Lloyd: Let me answer that simply. I do not think that what the hon. Gentleman refers to is different from a political party. Hopefully, our great political parties have a great material impact on the people of this country, and I would not want to allow the suggestion to run abroad that being a member of a political party is trivial, or membership of a Church for that matter. The Royal Society for the Prevention of Cruelty to Animals, which has specific ambitions, expelled some members whose expulsion was held to be legal because it was consistent with what that organisation sought to do.

Mr. Dismore: I would like to back up the point of my hon. Friend the Minister. I do not see any reading of clause 19 that supports the idea that a political party would have to be named in the union’s rules. To support what the Minister said, clause 19 says that conduct has to be contrary to a rule or an objective, not a rule and an objective, so it catches rather more than the Minister suggested.

Tony Lloyd: Yes, except for the fact that, as my hon. Friend knows, some good legal opinion says, “We do not know what an objective means.” It is not well defined in the Bill or more generally. We know what the rule book is, but to talk about the objectives of the union is to talk about an amorphous concept. With great respect to my hon. Friend, I know that he has far more legal experience than I have, but he does not have more legal experience than all the lawyers I have spoken to. He and other lawyers disagree, which does not mean to say that he is wrong, but he and my hon. Friend the Minister have to reflect on the fact that if lawyers are disagreeing at this point, the Bill is not good law. That is the issue we have to address.

Mr. Djanogly: Is not the more fundamental problem that there is no definition of what a political party is? It does not have to be a political party at all; it could be a lobbying organisation.

Tony Lloyd: It could indeed be a lobbying organisation if, as in the case of ASLEF, it is a membership organisation that is fascist. That touches on what we are seeking to achieve. The ASLEF rulebook was consistent with its ambition to drive racists out of the union because they are incompatible with the rest of its members. It is important that it can so proscribe, which is why we do not want to build into the Bill the need to name the BNP or whatever. There is obviously a dispute between us as to whether that is necessary.

Mr. McCartney: Sometimes in the trade union movement we are in danger, if we are not careful, of taking an opinion from a lawyer and placing it against another lawyer’s opinion while failing to have an opinion ourselves. What we have here is a victory plus, if my hon. Friend does not mind me saying so. The big thing about the fascist movement is that it will always split—the National Front, the BNP and so on. Someone else will come along. The issue is whether the judgment gives the capacity for trade unions to establish principles in law and practice to defend themselves against infiltration by
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organisations or individuals representing organisations. The fact of the matter is that it will. If we had listened to all the lawyers in 1999, we would never have passed the legislation that some people have been arguing about tonight.

Tony Lloyd: My right hon. Friend knows that he and I have great mutual respect, admiration and all the rest of it, but that does not mean to say that he is right in this case . [ Interruption. ] Neither he nor I is a lawyer, so we have a big advantage. It is precisely because lawyers clashed on the matter in the first place that we ended up with the ASLEF decision going to the industrial tribunal. The tribunal made its decision, but it was overturned at the European court, and that was not because lawyers disagreed over some academic legal exercise. Sometimes, lawyers disagree about the most profound issues that affect real people’s lives. That is what we are talking about.

If the Bill were definitely a plus plus, I would happily be on the same side as my hon. Friend the Minister and my right hon. Friend the Member for Makerfield (Mr. McCartney). The problem is that there is a real concern that the law is not workable, which is the real difficulty. If it is not workable, and it does not allow a trade union to exercise what the House wants it to exercise, we are not writing good law. It is the duty of this House not to quibble about what lawyers say—I agree with my right hon. Friend on that—but to quibble about what the law will do in practice. That is the issue before us.

Mr. Djanogly: Does the hon. Gentleman not agree that not having a definition of a political party will lead to a lawyers’ feast? For instance, Militant Tendency was not a political party—it was a newspaper. Does he think that should be captured?

Tony Lloyd: That is not relevant in this case.

Mr. Graham Stuart: Why not?

Tony Lloyd: With great respect, these are interesting debating points, but they are not serious debating points. As I said to the hon. Member for Hemel Hempstead, if we are determined to capture fascist organisations— [ Interruption. ] I think that the hon. Member for Huntingdon may have given it away, because he said he is not in favour of capturing fascist organisations. That is the difference. Those in my party want unions to have the capacity to expel members of the BNP—people who are racist and fascist—from their membership.

Mr. Djanogly rose—

Tony Lloyd: I hope that the hon. Gentleman will clarify the Conservative party’s position.

Mr. Djanogly: I am simply going to qualify the hon. Gentleman’s remark on what he thinks I believe, which is not at all correct. We simply say that the clause will catch all organisations: fascist, communist or Greenpeace. Even Conservatives and Liberal Democrats could be banned under the clause.

Mr. McCartney: It is plus plus then.

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Tony Lloyd: I do not think that I shall comment on the point of my right hon. Friend the Member for Makerfield, except to acknowledge it, which means it will now appear in the Official Report.

Under the Bill, or my new clause, it would always be possible for the rules to be drawn up to exclude people in a way that most of us would regard as unfair—that is right. But it would require an open debate in our society, of the kind we are having today, about the exclusion of fascists, and about whether it is right and proper to exclude members of the Labour party, the Conservative party, Christian Scientists or whatever. I must say this, however: no trade union has ever gone down that road. Neither the hon. Member for Huntingdon nor any of his friends can give me an example of where trade unions have sought to expel someone for being a member of the Conservative party, the Liberal Democrats or any other mainstream political party. This is a very specific situation. We must not prevent the House from giving trade unions the proper capacity to do what they ought to on behalf of their members by raising the bogus spectre of unions abusing a power they have never sought, or sought to abuse.

Rob Marris: May I kindly suggest that my hon. Friend should not get too bogged down in what the Opposition are saying because they do not seem to be aware of his position? His amendment No. 3 would remove clause 19 from the Bill. I say to the Opposition that my hon. Friend is not seeking to defend the wording in clause 19 in any way; he is seeking to remove it. If they had bothered to read the Order Paper, which the hon. Member for Huntingdon (Mr. Djanogly) clearly had not—he would not have got lost otherwise—they would realise what my hon. Friend’s position is.

Tony Lloyd: I think that the hon. Member for Huntingdon wants to make another speech—if he is able to catch your eye, Mr. Deputy Speaker—so perhaps when he does, he might want to clarify the Conservative party’s position. It seems that he is arguing not only against clause 19, but the amendments and anything that would give powers to trade unions to expel members of the BNP. That is the important distinction. Those in my party, including the Minister and me, want the same objective, which is to give trade unions the proper capacity to expel.

Mr. Djanogly: Will the hon. Gentleman give way?

Tony Lloyd: The hon. Gentleman will make his own speech.

Mr. Djanogly: No, I am not going to.

Tony Lloyd: How interesting. In that case, I shall give way to my hon. Friend the Member for Bassetlaw (John Mann) first.

John Mann (Bassetlaw) (Lab): The Government do not seem to understand that the critical principle is not about membership of a political party but about active racism and fascism. The case that the Attorney-General recently prosecuted provided a good example of the sort of person whom unions would not want as a member. A fascist was prosecuted for the first time in this country for uploading a neo-Nazi website from America that would have been banned in this country.
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Is not that precisely the sort of person whom unions should have the right, in principle, to exclude from membership?

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