Employment Bill [Lords]

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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.
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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.
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”
“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?
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