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Mr. Crabb:
I should like to speak to amendments Nos. 10 and 11, tabled in the name of my hon. Friend the Member for Huntingdon (Mr. Djanogly). By way of background, clause 19 gives trade unions the right to exclude or expel individuals on the basis of their membership of a political party, subject to several safeguards, which are set out in the relevant subsections. This was debated at some length in Committee, and numerous hon. Members participated in that part of the Committee proceedings, recognising the fundamental
importance of the rights that were being debated. We recognised the potential conflict between two fundamental civil liberties: the right to freedom of association and an individual’s right to a political belief, unhindered by arbitrary interference by public authorities.
The bar on trade unions excluding or expelling individuals from membership is set out in section 174 of the Trade Union and Labour Relations (Consolidation) Act 1992. That section was itself introduced as an amendment by section 14 of the Trade Union Reform and Employment Rights Act 1993. The section was subsequently amended again in considerable detail by the Employment Relations Act 2004. Those changes made it clear that it was lawful for trade unions to exclude or expel individuals on the ground of their political party activities—that is, their conduct. In Committee, we agreed with the right of unions to end membership on the ground of conduct, but not on the ground of belief. So, despite the best efforts of this House and of the other place, when passing that legislation to balance the competing rights of the individual and the trade unions, the European Court of Human Rights—in its decision on ASLEF v. the United Kingdom—felt that we had not struck the right balance.
We have been discussing new clause 6 and amendment No. 3, tabled in the name of the hon. Member for Manchester, Central (Tony Lloyd). We believe that their combined effect would be to take us back to the pre-1992 position. We would have to disregard the decision in the ASLEF case, and to forget about the need even for a human rights dimension, in allowing trade unions to expel or exclude members at will. These proposals run contrary to the Conservative view of employee-employer relations. On one level, however, their effect would be to force the Government to reassess this whole area, and perhaps that is what hon. Members truly wish to legislate for.
Attractive as that proposal might be, however, it is unfortunately unworkable. Our real concern with these amendments is that they would once again make quasi-legislation out of trade union rule books. In the past decade, we have moved away from that towards what must be the correct position: the rule book acting as a contract between the trade union and the employee. If we now seek to return to the old ways, we should force the courts into interpreting trade union rule books just as they interpret statute in employment proceedings. That would not only set the employment relations process back 10 or 15 years; it will also place the courts in a very difficult position and open the floodgates for further litigation.
Mr. Brian H. Donohoe (Central Ayrshire) (Lab): Will the hon. Gentleman give away?
Mr. Crabb: I will not give way.
Too many advances have been made since 1992 for us to return to that position. We therefore oppose those amendments.
We accept the legal authority of the decision of the European Court of Human Rights in the ASLEF case, but we would like to put on record our deep unease with it. To our mind, it marks a further erosion of personal civil liberties by an organisation whose remit is supposedly to protect them. Here we have a court of human rights reining in the freedoms of an individual.
Amendment No. 10 seeks to place a limit on how far back a trade union is entitled to look into a member’s past to find reasons to exclude or expel that person. I accept that this is a question of balancing interests, proportionately and in a common-sense fashion. We recognise that, with time, people change, that their views change and their actions are adapted. As we pointed out in Committee, membership of the Campaign for Nuclear Disarmament as a student in the ’60s should not automatically allow a 50-year-old to be expelled from a trade union that represents workers in the nuclear industry—
Mr. Crabb: I am not giving way.
In Committee, the hon. Member for Broxtowe (Dr. Palmer) was kind enough to give us a practical example, when he said:
“I was a communist when I was young, although I was not a party member. I was quite open about it. I can imagine a situation in which that could be used against me professionally”. ——[ Official Report, Employment Public Bill Committee, 16 October 2008; c. 79.]
We agree with his concern. The Bill’s provisions seem at odds with a person’s human rights, so our amendment would address that wrong by saying that party membership must have been within the 12 months prior to an individual’s application for trade union membership. On the advice of a number of hon. Members in Committee, we have also tightened the drafting to include future party membership. We hope that that will satisfy other concerns that had been expressed. It seems unfair to us that the union’s right to expel should last for ever. Amendment No. 10 would deal with that concern and I give notice of my intention to press it to a Division.
Amendment No. 11 also addresses our ongoing concerns about the definition of what constitutes a political party, because, as things stand, there is no definition in the Bill, so we believe we are in real danger of enacting a clause that has a far more damaging effect than it should have. We need to ask at what point a person’s associations become more indicative of their beliefs than their individual conduct or characteristics. Several members of the Committee noted that although they were members of one of the main political parties, they did not necessarily agree with the entirety of their party’s views. We know that political parties are broad churches, but I fear that we are danger of tarring all with the same brush.
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The choice to become a member of a political party is an active choice and a definite action, but it might be inspired by any number of reasons. I wonder how many new Labour party members who joined around 1997 in the heyday of Mr. Blair now find themselves in a very different party, as we have seen this evening, putting forward 1970s-style trade union legislation. Clause 19 is a recipe for disaster.
I agree with those hon. Members who believe that we should be worried about the British National party, but we may be missing the wood for the trees. We reminded members of the Committee that the right hon. Member for Holborn and St. Pancras (Frank Dobson) supported original legislation to protect communists and their
fellow travellers from being hounded out of the unions, so although we can talk about countering the BNP, we must not think that legislation is the only means of doing so. It is not, and many other organisations could be caught in that legislative net.
Given the position in which we find ourselves, we need carefully to regulate who will be caught, which is why we suggest limiting expulsion rights to registered members of political parties. We accept that the proposal has flaws—personally, I have real sympathy with some of the ideas expressed in Committee, especially on extreme political groups such as Combat 18 or the Militant Tendency, which would fall outside my definition of a political party—but we have to understand that we are debating this on the back of the ASLEF decision. Since 1993, as the Minister rightly noted in Committee, the unions have had the power to expel or exclude an individual on the basis of their conduct. The clause deals expressly with political party membership—the very issue at stake in the ASLEF case.
When we fall within the wide parameters of democracy, the spectrum of beliefs is very broad and the question becomes where we draw the line and who draws it. We must be careful not to allow the Bill to creep into areas that it is not designed to cover. The ASLEF decision dealt only with expulsion or exclusion on the basis of political party membership, not on the basis of conduct or association with a group. We must ensure that we draw the line at a reasonable place, and I believe that our amendment does just that. If we do not say that the provisions should apply to registered members of political parties, to whom will they apply—people who wear Nazi insignia or Che Guevara T-shirts or who are known to associate with extremists? I fear that we may end up with trade union witch hunts in which members who show even the slightest diversion from the party line find themselves out on their ear.
As with much of the Bill, we are being forced to accept the lesser of two evils. For us, certainty is preferable. One thing is for sure: as things stand, clause 19 is inviting court cases to decide what constitutes a political party—and many extreme groups have shown themselves only too happy to go to court over such matters. The amendment will, I hope, provide less room for them to do so.
Mr. McCartney: I rise to support clause 19. My hon. Friend the Member for Dagenham (Jon Cruddas)—he has unfortunately left the Chamber for a few minutes, but has been in his place since the debate started—and I spent time in 1997 and 2007 working on an almost daily basis with Government lawyers, trade union lawyers and employers’ lawyers to put right the failure of the last Conservative Government effectively to implement any European legislation relating to employment rights in the workplace. The hon. Member for Preseli Pembrokeshire (Mr. Crabb) is probably too young to remember the witch hunts of the 1970s and ’80s against trade unionists sacked by their employers simply for joining a trade union. It was this Government in 1999 who put an end to that type of witch hunt, so protecting people’s right to join a union and to encourage others to join it.
I speak from a non-legal standpoint, but I am not putting across an anti-lawyer argument, as over the years in my time as a trade unionist, many lawyers
helped me with advice and support. Indeed, Lord Wedderburn is a hero of mine. He has spent his life not only looking at the law in intellectual terms, but trying to implement it in a practical, common-sense way.
There is no such thing as a perfect piece of legislation. We have to ensure that once enacted, it achieves the objectives in a way that maximises support for it within the community and wider society. In my view, we are righting a wrong against ASLEF and others. No one has so far congratulated ASLEF and other trade unions up and down this country on spending a lifetime opposing fascism, especially when it infiltrates their organisations. We should congratulate ASLEF on sticking to its guns and winning an important legal point.
The point that ASLEF won was not to do with its rule book per se. Instead, it related to a piece of legislation introduced by the Conservatives in 1992 which was a breach of article 11 of the European convention on human rights. A Conservative Government implemented bad legislation. On behalf of the European Court of Human Rights, we are attempting to implement a new piece of legislation to get rid of what happened in 1992 which was so damaging to ASLEF and others.
No doubt if we pass the Bill, all unions should, as a matter of course, look at the rule book to ensure that it is compatible with changes set out in clause 19 so that they can use it effectively now and in the future to protect themselves, their members and workers in the workplace against fascist activity by individuals or collective groups of individuals, whether they are in the BNP or other organisations.
Mr. Graham Stuart: A Labour Member mentioned that Communist party members were driven out of trade unions in the 1950s. Is the right hon. Gentleman comfortable with the fact that Communist party members and others could be driven out using this legislation?
Mr. McCartney: I think that the hon. Gentleman is about my age. He should have realised what was happening in the 1950s. There were witch hunts against communists, but not by trade unions or trade unionists; they were carried out by right-wing politicians here and in America, and of course blacklists were introduced by Conservative employers which lasted all the way through to 1999. This Government got rid of blacklists as well. There is a history of people being blacklisted and blackballed, but not for their political views, in the way that we are talking about the BNP and fascists, but because of their capacity and willingness to represent working-class people in the workplace against employers who did them down. If the hon. Gentleman wants to talk history, he should get it straight.
The issue is simple. Does the proposal accepted in the Lords achieve the objectives? First, does it achieve the aims set out by the Court in ASLEF v. UK? Secondly, in achieving that objective, does it give trade unions the opportunity in a practical way to take account of changing circumstances in the future, both in terms of fascist organisations and individuals in the way in which they organise and operate, or attempt to do so, in the wider community and workplace? If Lord Wedderburn says to me that that is exactly what the proposal does, with the appropriate safeguards, then I will back him on any occasion. If Bill Morris, a colleague of mine, says from his perspective as a former general secretary of a union
that has a history of shop stewards being blacklisted and undermined in the workplace, that the proposal is the most effective way forward and achieves the objectives set out when ASLEF appealed in the court, we should accept it as a victory.
I know of no piece of legislation passed in this place on employment rights or the protection of trade unions that will not come under scrutiny or challenge. The reality is that the Bill will be challenged, as the National Minimum Wage Act 1998 was challenged. We thought that the Act protected pupil barristers, but barristers went to the High Court and had the legislation overturned. We thought that that decision was wrong, and we came back to the House and amended the Act to protect workers from being undermined.
When lawyers disagree with each other, it is no reason for us to lose our nerve and not do the right thing by ASLEF and other trade unions. The Bill overwhelmingly does the right thing. We need to do what it sets out, not just because the Court told us to do so, but because ASLEF was right in the first instance in protecting itself and its members from fascist organisations and fascist individuals.
I shall support clause 19. Let us get on with the task that ASLEF set us all so many years ago. Let us organise a victory against fascism and racism in the workplace, and encourage people to join unions. Clause 19 will enable many people out there who are not union members to take comfort in the knowledge that they can join a union without being victims of abuse from fellow members who are racists.
Dr. Evan Harris: One cannot but admire the speech that we have just heard. I agree with everything that was said by the right hon. Member for Makerfield (Mr. McCartney), and I thank the Government for making this concession after hearing what was said in the House of Lords. They have a big majority in this place and they could have stuck to their guns, in which case we would probably have had ping-pong. It should be noted that they recognised the existence of an alternative way that is clearly better than their original proposal.
I want to make two points. The first concerns the Court judgment. It should be borne in mind that the Court held that the relevant provision in United Kingdom law which prohibited a trade union from expelling a member for membership of a political party failed to strike the right balance between the right of the union to freedom of association and the right of the individual to freedom of association.
We have to recognise that human rights must sometimes be accorded to people with whom we find it difficult to sympathise. That is the measure of human rights. It is very easy to grant human rights and civil liberties to people with whom we agree all the time, and whom we find pleasant and amenable. It is much harder to stretch the definition, and the test of whether we have the right human rights culture is whether we extend it—when it is reasonable to do so—to people with whom we encounter difficulties.
As is made clear in a report from the Joint Committee on Human Rights, the judgment stated:
“The UK had gone too far in its protection of the... member against measures taken against him by his union, at the expense of the right”
of members to choose. We noted:
“The ASLEF judgment unequivocally recognises that trade unions enjoy, under Article 11 ECHR, a right to freedom of association which includes the prima facie freedom to set up their own rules concerning conditions of membership. The judgment, however”—
this is why I oppose the new clause tabled by the hon. Member for Manchester, Central (Tony Lloyd)—
“is equally clear that this right of trade union autonomy is not unlimited: the Court clearly envisages a positive obligation on the State under Article 11 ECHR to protect the freedom of association of the individual against abuse of a dominant position by trade unions.”
In our recommendation, we argued that safeguards were needed in addition to those in the original Bill
“to strike a ‘fair balance’ between, on the one hand, the Article 11 right of a trade union to control its membership and, on the other, the Article 11 rights of the individual, including the right not to be excluded or expelled from a union arbitrarily or in circumstances that would result in exceptional hardship.”
Those words are taken from the judgment.
Ian Stewart: The hon. Gentleman has just explained, in terms as clear and concise as any I have heard, that no union—or, indeed, any organisation, but no union in this instance—should be allowed arbitrarily to dismiss, expel or exclude any person who wishes to join that organisation or remain a member of it. However, that is not what this provision is about. It is about circumstances in which a union has clear rules, objectives and aims encapsulated in a rule book, agreed by its members, to the effect that no individual who holds views contrary to those rules, aims and objectives should be allowed to join, or that any such individual should be excluded when the union discovers that that is the case. In this instance, we are citing fascism.
Dr. Harris: I have only a couple of minutes—
Madam Deputy Speaker (Sylvia Heal): Order. Interventions must be brief.
Dr. Harris: I apologise, Madam Deputy Speaker.
The hon. Gentleman is right, but there need to be additional safeguards beyond those that he has identified. I think that clause 19 captures them pragmatically, and in the best way possible.
I am concerned about the position of the Conservatives. Either they accept the ECHR judgment or they do not. The hon. Member for Preseli Pembrokeshire (Mr. Crabb) praised the judgment but then attacked what it led to, which is where we are now.
Mr. Djanogly: Will the hon. Gentleman give way?
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