Mr.
Djanogly: The hon. Gentleman has a right to opt out of
that political contribution. He is not forced to pay money to the
Labour
party.
John
Hemming: As long as it stops accepting loans for peerages,
I am quite happy about that in the interests of pluralism. I even paid
£1 to the Acock’s Green Labour party to guess the weight
of its cake. There is a photograph of me doing
so. Mr.
Hugo Swire (East Devon) (Con): On a point of order,
Mr.
Bercow.
The
Chairman: I hope it
is.
Mr.
Swire: Indeed, Mr. Bercow, you may well rule me
out of order. As a matter of interest, I was wondering whether, under
Liberal Democrat party rules, it is possible financially to support
another party while remaining a Liberal Democrat Member of
Parliament.
The
Chairman: The rules of political parties are absolutely
not matters for points of order and they are certainly not an issue for
the Chair as, I have a hunch, the experienced hon. Member for East
Devon is well
aware.
John
Hemming: I am not sure that is a point to which I should
respond as it is not necessarily in order.
The amendment
mentions material financial disadvantage. It being an amendment
proposed in the other House by my noble Friend Lord Lester, we
obviously continue to support it here. Materiality is quite
straightforward. There is a fee to be a member of a trade union. It
does not all go to the Labour party. Therefore it is quite feasible to
identify a material disadvantage where it exceeds the fee that would
have been paid to the trade union had one been a member of it. That is
quite a reasonable argument. Otherwise, we are pleased with the
solution identified by Lord Lester.
Freedom of
association is important, and not to be discounted when one has what
are effectively voluntary associations. If there is no material
financial disadvantage, that is a reasonable action to permit under the
rules. Dr.
Nick Palmer (Broxtowe) (Lab): There is a genuine conflict
over the issue of liberty, which was well summarised by the hon. Member
for Huntingdon. We all accept that freedom of belief and association is
important. It is not right, in general terms, to combat a legal
political party by harassing its members. To take a parallel on the
other side of the political spectrum, I was one of those who were
concerned by the German Berufsverbot, by which members of the Communist
party were systematically excluded from parts of public service. A
trade union, however, is not an employer or an official body. Freedom
of association allows us to choose with whom we associate.
Therefore, the test needs to be whether the behaviour of an individual
is such that it renders him unacceptable to members of a union or
association, and whether such exclusion causes him severe hardship, as
mentioned in the Government’s
proposal. I
listened carefully to the comrade from Birmingham, Yardley. The balance
of interests is satisfied by the rules laid down in the Bill. I do not
say that lightly; the issue is finely balanced. If we had a closed
shop, the position would be different, because one would have to belong
to a union to have a particular kind of employment. We would then see
an indirect Berufsverbot, whereby a union would be able to prevent
somebody from practising their profession because it objected to that
person’s legal political views. Therefore, it is important that
proposed subsection (4G)(c) stays in the Bill so that if a closed shop
were imposed again for a particular trade and for a particular reason,
the law would not be totally static. We do not want an unintended
consequence to arise from this law. With that safeguard in the Bill,
even if I were to be a member of an extreme—or a
non-extreme—group that was excluded from a particular trade
union, I would not feel that my ability to prosper and to pursue my
profession was obstructed. The proposals are reasonable, and I
congratulate the Minister on reaching this point in a difficult and
hard-to-balance
area. Mr.
Brian Binley (Northampton, South) (Con): I apologise for
arriving a little late, Mr. Bercow.
I hope that I
am not out of order; I am sure that you will quickly point it out if I
am. I am concerned about the phrase “or having been”, as
it seems particularly unjust. I want to refer to a situation in my dim
and distant youth, when I worked as chief clerk in the Co-operative
bank—when they had one—in Wellingborough. I was a rather
vociferous young Conservative, and vice-chairman of the association
party of Young Conservatives. I had the opportunity to attempt to
become a Conservative agent, and I succeeded. That is one of my
proudest boasts. However, the general secretary of the Co-operative
party allowed me to go for the initial interview and take the
examination on the understanding that, if I failed, I would leave my
Young Conservative work and not be a thorn in his side when some of my
words appeared in the press.
9.45
am I
have had experience, therefore, of being a member of a political party
and of that being used in certain ways which perhaps were not quite
legal. I was a young man and my livelihood was important, and I
accepted that agreement when I should not have done. However, if I went
back to the Co-operative party organisation in Wellingborough today,
could it say that, because I had been a member of the Young
Conservatives in Wellingborough 40 years ago, I cannot have that job? I
recognise that there are more detailed legal matters tied up in the
issue, but I want some understanding of what “having
been” means in terms of time. The suggestion that we limit and
define “having been” is important in this respect. There
are many previous members of the Labour party who have now got so sick
and tired of it that they want to join the Conservative
party.
The
Chairman: Order. The hon. Gentleman’s career
history may well be illuminating and, indeed, of ongoing interest to
members of the Committee. However the reference to “having
been”, important though it is, is really relevant to a clause
stand part debate. He made the point very clearly, and if he wants to
develop it further in the clause stand part debate I hope that he will
catch my eye and have the chance to do so.
Mr.
Swire: I seek clarification on the clause. It says quite
clearly: “the
individual would lose his livelihood or suffer other exceptional
hardship by reason of not being, or ceasing to be, a member of the
union.” As
the Committee is aware, our proposal is to replace “other
exceptional hardship” by “any material financial
disadvantage.” The Government have got themselves into a bit of
a fix over this. They are meant to be the protectors of all employees,
but here they are, sectioning out those who perhaps a union does not
agree with, for political reasons, in a rather pernicious manner. I
should have thought that, in this economic decline, masterminded over
the past 10 years and now, hopefully, reaching its culmination under
the iron Chancellor, that everybody’s employment rights should
be paramount. It is the heavy hand of a rather arrogant Government to
suggest that, in legislation, they can decide what exceptional
hardship, as opposed to material hardship, is.
I listened to
the hon. Member for Hastings and Rye’s questioning of what
material hardship would be, suggesting that “any material
financial disadvantage” could cover almost anything. Perhaps it
can, but I suggest that a disadvantage is losing one’s job,
being unable to keep up one’s mortgage repayments and the effect
that that might have on family life. These are very serious issues and
I find it quite extraordinary that the Opposition are seeking
clarification on a matter which is more usually within the remit of a
Labour party that purports to support
employees.
Mr.
McFadden: Let me put the amendment in context. The hon.
Member for Huntingdon set out some of the background to the clause. It
was the subject of more debate when the Bill passed through the other
place than any other clause. We can understand why that is, because it
deals with a very sensitive issue, which is the balance between the
rights of freedom of association and of freedom to join a political
party. That is obviously sensitive territory, and we must proceed with
caution and care when legislating in that
area. The
legislation is necessary because of the ECHR judgment in the ASLEF
v. UK case. As we have heard, that involved ASLEF’s
attempts to expel a member of the BNP—I will not repeat the
background to the case that the hon. Gentleman has set out. The court,
in weighing up the different rights involved, found that UK law as it
stands is not compatible with article 11 of the European convention on
human rights, concerning freedom of association. I hope that the need
to legislate does not divide us. The Government believe that our law
should be compatible with the convention. The question is how to
legislate, which was at the heart of the debates on the clause in the
other place.
Before
introducing the Bill, the Government consulted on two options. The
first was a deregulatory approach that would simplify the law and give
unions broad
powers on the matter. The second was a more specific approach, broadly
along the lines of the current clause 18. The Government originally
adopted the deregulatory approach, but that aroused fierce controversy
in the other place across the political parties. We have heard that
Lord Lester of Herne Hill was very vocal on the issue, as was Lord
Morris of Handsworth, who spoke on the subject at Second and Third
Reading. After a great deal of discussion, with those eminent peers in
particular—one of whom is one of the country’s most
eminent human rights experts and the other is one of the
country’s most eminent trade unionists—as well as
consideration of the views of the Joint Committee on Human Rights, the
Government agreed to amend the clause to create the current clause
18. The current
clause 18 does two things. It restores the provisions relating to
“protected conduct”, meaning membership of a political
party, which the previous clause would have repealed. It then sets out
three safeguards for when a trade union proposes to expel or exclude
someone on the basis of party membership. One of those safeguards
relates to the subject of amendment No. 19. I shall concentrate on that
rather than the other two.
Exclusion or
expulsion should not result
in “exceptional
hardship by reason of not being, or ceasing to be, a member of the
union.” In
other words, the exceptional hardship must be directly related to not
being a member of a union. That is set out at proposed new subsection
(4G)(c) in clause 18. The phrase “exceptional hardship”
has been the focus of the debate. We did not choose it at random; it
was the phrase used in the ECHR judgment, paragraph 43 of which
states: “Such
abuse might occur, for example, where exclusion or expulsion from a
trade union was not in accordance with union rules or where the rules
were wholly unreasonable or arbitrary or where the consequences of
exclusion or expulsion resulted in exceptional
hardship”.
It is the same phrase
used by the Joint Committee on Human Rights when it considered the
matter. Its report on how the clause should be amended said
that “the
exclusion or expulsion of the individual is permitted only
if...the
decision” is “taken
in accordance with the union’s rules and a fair
procedure;...the union’s rules are not wholly unreasonable;
and...the consequences of exclusion or expulsion would not result
in exceptional hardship.”
The test we have set in
the clause is therefore the same as the test quoted in the judgment by
the ECHR and referred to in the report on that issue by the Joint
Committee on Human
Rights. Reference
has been made to loss of livelihood. Paragraph 50 of the judgment
states that such a case would not result in exceptional
hardship: “As
there was no closed shop agreement for example, there was no apparent
prejudice suffered by the applicant in terms of his livelihood or in
his conditions of
employment.” Not
being a member of the union did not mean that the individual would lose
his job, which could have been the case when a closed shop existed in
this country, and that was referred to in the ECHR
judgment. Mr.
John Baron (Billericay) (Con): The Minister is approaching
the issue in the delicate manner it deserves. While I accept what he
says about the importance of there being no closed shop, does he not
feel at least a
tad uncomfortable with the legislation, because we are talking, despite
all the qualifications, about a trade union being able to expel someone
from membership purely on the grounds of what that person
believes?
Mr.
McFadden: As I said, this is a delicate area, and we have
to tread carefully when we legislate on it. However, we are legislating
in line with the ECHR judgement, which found that the absence of such a
provision left us wanting in regard to article 11, and that was based
on membership of a political party rather than on grounds of conduct,
which had previously been in the rules.
Mr.
Swire: Does the Minister personally believe that a union
should have such
power?
Mr.
McFadden: I am happy to legislate on that basis because I
think that our laws should be in line with the convention. When such
powers are exercised, it is important that there are proper safeguards,
and that is why we have put them in the Bill. I have concentrated on
only one of them in this case, but there are three in
total.
Mr.
Stephen Crabb (Preseli Pembrokeshire) (Con): If it were
not for the European Court of Human Rights judgment, would the Minister
have any interest in bringing forward this kind of
legislation?
Mr.
McFadden: We have the ECHR judgment, which has given rise
to the legislation, and it gave us the test of exceptional hardship.
The amendment mentions “material financial disadvantage”
rather than material financial hardship, a point to which the hon.
Member for Huntingdon referred several times. As my hon. Friend the
Member for Hastings and Rye said, this is an altogether different
test—a much lower test—that could include many detriments
associated with loss of union membership. For example, many unions
provide a limited form of free or subsidised legal advice. Such legal
assistance could of course be purchased by the individual, but he might
end up having to pay more for it, which could result in a loss of some
benefit because he is not a member of the trade
union.
Mr.
Swire: The Minister looks rather resigned when I make
these points, but I am only trying to protect the workers. Were a
member of a union to be expelled from that union for reasons of
political membership, would that person still be a member until the
judgment is against him or her? Therefore, would he or she be entitled
to the union’s protection for the legal fees in contesting the
expulsion?
10
am
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