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8 pm
Tony Lloyd: I agree, and stress that the Government share that objective. We are not disputing objectives, but I am not sure what those of the Conservative party are.
Mr. Djanogly: The hon. Gentleman said that we opposed clause 19—that is not the case. The Conservative party appreciates and respects the finding of the European Court of Human Rights. Indeed, the clause that we are discussing is a compromise provision that Liberal Democrats and Conservatives in the other place proposed. Our opinion is that it still needs refining.
Tony Lloyd: We are at one about that, but I do not know whether the hon. Gentleman’s definition of refinement and mine are the same.
There are serious doubts about whether the Bill as it stands achieves what we all support—compatibility with the European Court’s decision, and unions’ ability to expel fascists from their organisation. However, the serious concerns apply not only to the measure’s overall structure but more narrowly to the belt and braces of the clause. As I said to my hon. Friend the Member for Hendon, there is a genuine question about what “objectives” mean and how the word is interpreted. He shakes his head, and he may want to comment further when he makes a speech, but the point has been made by reputable members of his profession. Although I accept the injunction of my right hon. Friend the Member for Makerfield not to take seriously questions between lawyers, it is important that we know what we are talking about when considering clause 19.
There are concerns about the Bill’s rigidity and inflexibility, especially the provision to protect those who are excluded—not expelled—from joining, which would not apply to any other organisation. The European Court of Human Rights did not ask for a would-be member of a union who was turned down because of membership of a fascist organisation to be given a hearing about the reason for the refusal. That is unlike anything that would happen in other organisations. If the Conservative party decided not to accept someone, it would not hold a hearing to determine whether that was right and proper.
Clause 19 also uses the words, “exceptional hardship”. We know what exceptional hardship means for someone who loses a job—that concept is clearly understood. However, exceptional hardship for being refused membership of a union is not well defined. We do not know how a court would define it. That creates ambiguity for any union that tries to use clause 19, yet we have been told that the provision is straightforward. Will the ambiguity mean that unions would not use the provision, and therefore not have the power that we want to give them? If they used the provision, would they risk being taken before a tribunal?
Why does the Bill use the same terms as those that relate specifically to somebody losing a job? Under existing law, which the Government introduced, it is illegal for an employer to sack somebody for non-membership of a trade union. We got rid of the closed
shop many years ago in 1992. The reason for such protection is therefore not obvious.
I also wish to ask about the amount of compensation. The sum of £6,900 for someone who manages to find a technical fault in the process whereby a union excludes or expels is a heavy penalty for the union, and brings us back to the British nationalists’ advice to their members: “If you’re not a member of a union, then join.” Those who look to be thrown out to get a big five-figure pay-out should make it known to the local union that they are BNP members. The BNP clearly perceives such legislation as a cash cow that can fund the party.
Ian Stewart: I agree with my hon. Friend, but does he know that the average award to employees who have successfully claimed unfair dismissal is much lower? The last I heard, compensation averaged £3,000. Why should there be a difference?
Tony Lloyd: My question is, why should there be compensation at all in the case that we are considering? However, as my hon. Friend says, why is it out of line with other forms of compensation?
If new clause 6 were adopted instead of the current provisions, it would grant the flexibility that the hon. Member for Hemel Hempstead seeks. It would provide for a much more general process that was consistent with the union rule book. The union rule book could—as the ASLEF rule book did—specify that
“no person shall be admitted into membership... if... they are members of, supporters of, or sympathisers with organisations which are diametrically opposed to objects of the union, such as a fascist organisation”.
That is clear, albeit general, and covers the problem of rotating party membership. It would grant genuine protection to those who sought it against arbitrary and unfair expulsion or exclusion because of membership of other parties—the Labour party, the Conservative party and so on. The union would be restricted by the rule book and by statute, which would insist on proper reference to the due procedures of a trade union. There are also the principles of natural justice and the role of the certification officer, who has stronger powers in a trade union than the equivalent in a private company. I therefore believe that, for example, the Conservative trade unionist and the Labour trade unionist are protected. The new clause is specifically about unions invoking their rule book to get rid of or not accept those who are avowedly fascist. We should all share that ambition.
I therefore recommend that my hon. Friend the Minister revert to the law before it was changed, as set out in new clause 6. If he cannot accept the new clause, he must demonstrate how the genuine doubts that have been raised about the workability of clause 19 can be properly addressed. We cannot find that we have not moved matters on—that would be a victory not only for those who want to amend the measure in the wrong way, but for the BNP and its supporters.
Lorely Burt:
I welcome new clause 4, which the hon. Member for Hayes and Harlington (John McDonnell) tabled. The idea of workplace environmental representatives constitutes reasonable and balanced policy, which is in line with our party’s ethos on environmental sustainability, health and safety and the importance of corporate social responsibility. I note that the hon. Gentleman
tabled a related amendment to the Climate Change Bill, which was not picked up. However, my party is very happy to support his new clause.
New clause 6 would repeal outright those provisions in the Trade Union and Labour Relations (Consolidation) Act 1992 that provide for individuals employed in industries that require union members not to be unreasonably excluded or expelled from any trade union. I have a great deal of sympathy for the comments that the hon. Member for Manchester, Central (Tony Lloyd) made, but the proposal ignores the European Court of Human Rights judgment in ASLEF v. the UK, to which he referred at some length. I will not go into that, but noble Lords from all parties in the other place worked hard to construct the current law, including the noble Lord Morris, so unfortunately we are not in a position to support new clause 6.
Clause 19 may not be perfect, but the best brains from all parties in the Lords worked hard to draft amendments that were acceptable. Therefore, we cannot support amendment No. 3.
Amendment No. 10 calls for an individual’s membership of a political party to become relevant only if it fell within the 12 months prior to their application for membership of a trade union. I can completely understand the reasoning behind the amendment. If someone became a member of an unacceptable party such as the BNP when they were 15 and then wished to join a trade union at 40, it seems unfair that they should be penalised.
However, there is another side to the argument. A trade union should have the right to expel whomever it feels it wants to expel. Imposing conditions such as those in amendments Nos. 10 and 11 would amount to the Government telling trade unions whom they could and could not have as members. If the Government starting telling political parties whom they could and could not have as members, they would not countenance such interference.
Mike Penning: But political parties can decide to exclude someone. If someone brought our party into disrepute, they could be excluded, including for something that they had done before joining. I am sure that the same is true for the Labour party, although I do not know about the Liberals.
Lorely Burt: I am not sure that I get the hon. Gentleman’s drift. My point is that any party or trade union should have the right to expel whomever it feels should be expelled. Of course there need to be safeguards, however, and that is completely understood.
The principle behind amendment No. 11 is the same. The trade unions should be allowed to exclude whomever they please. If we are talking about a new party that is not yet registered or a party that is changing its name in order to get round the rules, it should still be possible for trade unions to exclude whomever they feel it appropriate to exclude, without being placed in a straitjacket. It is up to trade unions to decide, just as it is up to political parties to decide.
8.15 pm
Mr. Dismore:
I rise to speak primarily to new clause 6, but I also want to say a few words about new clause 4,
to which I am a signatory, in order to respond to the rather weird tirade that we heard from the Conservative Front Bench on the issue.
Delivering the green agenda in the workplace can be done only in co-operation with the work force and the unions, even if it just means persuading people to turn the light bulbs off when they go home. To suggest that the activities set out in proposed new section 43A(2) to the Employment Act 2002, such as consulting on the workplace environment, should not be done in the firm’s time, given that the environmental reps will have to negotiate with the employer about the issue, is frankly ludicrous. I therefore support new clause 4.
My real reason for speaking is to address new clause 6 and the ASLEF judgment. The Joint Committee on Human Rights, which I chair, a little while ago published a scrutiny report on the issue—our 17th report of the Session. I apologise to the House that the report was not tagged on to today’s debate, which it perhaps ought to have been, because it deals at length with the ASLEF judgment and its implications. When the ASLEF case went through the European Court of Human Rights, the Government rightly accepted the need to amend the law in the light of that Strasbourg judgment. They consulted on two options, the first of which was effectively the option proposed by my hon. Friend the Member for Manchester, Central (Tony Lloyd) and the second of which was not quite the option in clause 19. That was the right thing to do.
When we scrutinised the issue in our Committee, my view was very much along the lines of my hon. Friend’s view. Having practised in that area of law and written a number of union rule books, I thought that the existing safeguards were adequate. The historic safeguard is the fact that the union rulebook is a contract with the membership that is subject to enforcement through contractual law and natural justice, and more latterly through the certification officer process. We discussed the issue at some length, having the benefit of advice from our legal adviser and the opportunity to look at some of the other debates. I came to the conclusion that we simply could not rely on the traditional safeguards.
The first point is about the possible impact on other political parties. The debate has focused on the BNP, but the risk is that the provisions could go beyond. We have heard a pretty anti-union tirade from the Conservative party tonight, which has reverted to type. It has been said that the Conservative party is not against the objectives and rules of most unions, but the way that it is going, one could easily see it slipping into being against such things, given its anti-union attitude.
In the 1950s, communists were expelled from unions wholesale, and particularly from the electricians union. So this has happened before, but to the left, not the right. That is why we have to be very careful about proceeding on such a basis. The Communist party might be a fringe party now, rather than the industrial power that it was in the 1950s, but the Socialist Workers party, for example, is very active in some trade unions and organises in those unions on a political level. We have heard, too, about other campaigners being affected. For example, animal rights campaigners might set up a party to campaign in unions involved in scientific industries, which could cause significant difficulties.
We need to consider what the ASLEF judgment said. It said what my hon. Friend the Member for Manchester, Central has already described, but it also said that
“the State must nonetheless protect the individual against any abuse of a dominant position by trade unions”
and then set out the need for appropriate safeguards. It is interesting that when we discussed the issue in my Committee, Lord Morris, the former general secretary of the Transport and General Workers Union, an influential trade unionist in his time and a man with immense experience of trade unions, was concerned about the lack of additional safeguards. I should also pray in aid Lord Wedderburn of Charlton, my old law professor from decades ago and probably the doyenne of trade union law, who also expressed his concerns in debates in the House of Lords about the lack of additional safeguards. As a result, my Committee proposed an amendment. A member of my Committee from the Liberal Democrat Benches, Lord Lester, also proposed his own amendment, which Lord Wedderburn thought was rather good, because it was as narrow as we could get, while also concomitant with the need for appropriate safeguards.
The problem with the proposal of my hon. Friend the Member for Manchester, Central is that, while it might rectify some of the incompatibilities, it does not deal with the need for appropriate safeguards. For example, none of the existing safeguards—the contractual rulebook safeguard and the certification officer safeguard—is available to deal with a person who is excluded from trade union membership in the first place, as opposed to having been expelled. Such a person cannot go to the certification officer, and they cannot go to court for a breach of the union rules.
I hope that we will pay attention to the issue of human rights in these circumstances. Sometimes, human rights can be a little inconvenient for us on the left, as well. There is clearly a positive obligation under human rights law to provide safeguards against abuse, and that is why my Committee proposed an amendment. My problem is that clause 19, as it stands, goes rather further than that amendment. My hon. Friend has made some quite trenchant criticisms of certain aspects of clause 19. I disagree with his point about the rules and objectives of the unions. Having written union rule books, I think it is pretty clear that most of them have clear objectives at the start of the rules, and that the rules are clear. They normally deal with the process, rather than the politics.
The part of clause 19 that states
“ if it is not reasonably practicable for the objective”—
“to be ascertained”
contains some rather woolly wording that we do not actually need. Also, the part that deals with the process issues contains rather more detail than is necessary.
Ideally, the Bill should not have started out in the House of Lords. We should have started it off in the Commons, and it could then have gone backwards and forwards. My main concern is that we are now caught between a rock and a hard place—that is, between my hon. Friend’s new clause, which I do not think is human-rights compliant, and clause 19, which probably is human-rights compliant from the safeguards point of
view, but which might go a little too far from the ASLEF judgment point of view. Neither option before us is ideal.
My real concern is for the Bill as a whole. If we were to agree to my hon. Friend’s new clause, we would inevitably end up engaging in ping-pong with the House of Lords, and the House of Lords has made it pretty clear that it is not going to go down the route suggested by my hon. Friend. We would therefore run the risk of losing all the good stuff in the Bill as well. On balance, therefore, my view is that we should leave clause 19—imperfect though it is—in the Bill.
Dr. Evan Harris (Oxford, West and Abingdon) (LD): What the hon. Gentleman says is fair, but we on the Committee recognised that this was going to be a question of compromise. We have not got the exact wording that we wanted, but it is fair to say that, although it is not perfect, clause 19 is much closer to what we wanted. We were unanimous on this—Conservatives, Liberal Democrats, peers, Labour Members, commoners and, indeed, the Cross Benchers. This is a complex issue, and the wording in the Bill is never going to suit everyone, but it is the best possible wording that we could get.
Mr. Dismore: I am not sure that it is the best possible wording that we could get, but, in practical terms, the risk involved in not accepting clause 19 as it stands is greater than the problems that would follow if we were to go down the route proposed by my hon. Friend the Member for Manchester, Central in his new clause. Clause 19 is probably closer to the perspective of human rights, and the interpretation of the decision of the European Court of Human Rights in the ASLEF judgment, than my hon. Friend’s new clause.
Tony Lloyd: My hon. Friend has mentioned problems that would arise from the new clause with respect to members of other political parties. Which part of clause 19 would prevent a union from introducing into its rule book a provision that being a member of, say, the Labour party was incompatible with union membership?
Mr. Dismore: There is a catch-all provision in proposed new subsection (4G) relating to circumstances in which
“the decision to exclude or expel is taken unfairly”,
and the subsequent hardship provisions provide additional safeguards, which my hon. Friend’s new clause would not do. The additional safeguards in clause 19 are the kind of safeguards that the Joint Committee on Human Rights report talked about, and that the ASLEF judgment hinted at. On balance, I think that we have to leave clause 19 in place—imperfect though it is—rather than adopting my hon. Friend’s new clause, even though he and I wish to obtain the same objective in the end.
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