Employment Bill [Lords]

[back to previous text]

Mr. McFadden: That would depend on how the union rule book constructed its free legal advice. My point is that we have chosen the test for exceptional hardship carefully. We discussed it with Lord Lester of Herne Hill, and it is referred to in the ECHR judgment and the report from the Joint Committee on Human Rights. Were we to agree to the test proposed in the amendment, it is possible that any expelled or excluded BNP member would try to argue that the union’s decision had disadvantaged them financially. In practical terms, that could make it almost impossible to use the provisions in the new clause.
Mary Creagh (Wakefield) (Lab): My union, Unison, has a holiday home for its members in Croyde bay, Devon, which I highly recommend to anyone seeking to escape the worries of this place. Is not the amendment a wrecking amendment? As the Minister said, if it were accepted a BNP activist could cite not only the loss of legal and financial services but the inability to take a holiday at the Croyde bay complex as a hardship incurred.
Mr. McFadden: My hon. Friend makes a good point. I note that the hon. Member for East Devon is here; I am sure that he would enjoy some respite in the Unison-provided home there.
There is a serious point at the heart of the matter. No union will take lightly the responsibilities entailed by a decision to expel or exclude someone from membership; after all, unions are in the business of recruiting members. We are setting down rules in legislation on how that should be done. It should not be done in a way that would give anyone a host of objections that are not based on exceptional hardship and could tie up unions in vexatious or similar proceedings. The clause creates safeguards that concern the union’s rule book, the person’s capacity to make representations and the test for exceptional hardship. It is not an arbitrary power; safeguards will apply that have been discussed carefully in the other place and, by and large, recommended by the Joint Committee. The amendment would take us beyond those and call into question the practicability of the clause and the Bill.
Mr. Baron: Although I accept that in the Minister’s mind safeguards may apply, there is no disguising the fact that this is a draconian power. If we believe that the best of unionism aims for equality and fairness for all, a union can hardly defend the position that it excludes members purely on grounds of their political beliefs. That is not equality or fairness for all: it is an infringement of civil liberties that must be considered carefully. We are going down a slippery slope if we accept the principle of these measures. What might come around the corner? Perhaps the safeguards will be diluted. Putting those to one side, it is still an infringement of civil liberties that is difficult to defend. Were it not for the ECHR, would the Government be pushing this legislation? That is a straightforward question; will the Minister give a straightforward answer?
Mr. McFadden: The hon. Gentleman is basically saying that we should not be legislating on the matter. [Interruption.] We have decided to legislate because we believe it important for our law to be in line with the ECHR. [Interruption.]
The Chairman: Order. Ordinarily, the hon. Member for Billericay is the very embodiment of courtesy. I feel sure that he will return to his natural state of mind.
Mr. McFadden: As I have said four or five times, the clause is in the Bill because the Government believe that our domestic law should be compatible with the ECHR. We have heard this question from the Opposition a few times, so let me speculate that if they are ever in a position to decide such matters, they would depart from the convention. If they would not align our domestic law with it, they are welcome to say so, but the Government believe that we should legislate with that in mind.
Barry Gardiner (Brent, North) (Lab): Does my hon. Friend agree that Conservative Back Benchers are somewhat trivialising the reason why the convention was brought into this in the first place? The European Court of Human Rights examining two competing rights and claims of liberty; indeed, that is why the matter had to go to the Court in the first place. After due consideration, it found—the Joint Committee backed it up—that the right of freedom of association has priority over the right to join a union, which we would all accept should be a right in our society. Sometimes those rights conflict, so it is important to take seriously what the court determined in its prioritising of the two.
Mr. McFadden: My hon. Friend is right to refer us to the history of the matter. The judgment tried to balance competing rights because the right of association was also involved—that is, the right of union members to decide with whom they associate. The Court ruled on a situation in which a member of the British National party held beliefs that were completely at variance with the dominant ethos of the union.
The power that we are setting out is not arbitrary, and there are important safeguards. I should like to quote the views expressed by Lord Morris of Handsworth who, I think we all accept, knows a thing or two about trade unionism and facing up to extremism:
“Three key principles have been met: Britain will be able to comply with its statutory obligations, trade unions will have freedom and democratic rights in respect of their rule books, while the ability to discipline their members has been preserved, and members’ rights to natural justice will be safeguarded. On that basis...I wish the Bill well on its way”.—[Official Report, House of Lords, 2 June 2008; Vol. 702, c. 21.]
That was his verdict on the safeguards that we have built in.
Michael Jabez Foster: Of course, Lord Morris could have been wrong. Given the comments from Opposition Members, does my hon. Friend agree that, like Lord Morris, he would not want to spend time in a holiday home with a racist? Why are we looking at the provisions in terms of exceptional grounds? He keeps referring to the fact that the court judgment says that the test is one of exceptional hardship. Where in the judgment does that apply, because that was not the understanding of others?
Mr. McFadden: I read from paragraph 43 of the judgment.
Dr. Palmer: I am grateful to the Minister for his eternal patience. Does he agree that the amendment is likely to be incompatible with the ECHR? Am I right that, as members of the European Union, we are collectively bound by that, and that if the Opposition were to press the amendment to a Division they would therefore, in effect, call into question the whole basis of our association with the European Union?
Mr. McFadden: That question may be raised, but my essential point is that the phrase “exceptional hardship” was carefully chosen. The test is consistent with—
Mary Creagh rose—
Mr. McFadden: I would like to wind up, but I shall give way to my hon. Friend.
Mary Creagh: I spent a happy 18 months on the Joint Committee and got my head fully around EU law and the convention. Perhaps I can illuminate the situation for my hon. Friend the Member for Broxtowe. The ECHR pre-dates the EU, and its set of signatories is much wider than that of the EU’s member states. I am sure that Opposition Members would wish to question our membership of the EU in many other areas, but that would not be the case in respect of the convention.
John Hemming rose—
The Chairman: Order. Let me say for the benefit of the Committee that we cannot have an intervention on an intervention, so the Minister should make a brief response, if he wishes to, and then give way.
Mr. McFadden: Thank you, Mr. Bercow. I shall give way to the hon. Gentleman in a moment, but I think I have to respond briefly to the intervention by my hon. Friend the Member for Wakefield, who is correct to differentiate the two things and to enlighten us on her experience on the Joint Committee, which, as I said, considered the matter carefully.
John Hemming: Is it possible to speak after the Minister?
The Chairman: Yes.
John Hemming: In which case, I shall do so.
Mr. McFadden: I will therefore bring my remarks to a conclusion.
We must tread carefully in legislating on such serious matters. There are competing rights to do with joining a political party and freedom of association. We intend to legislate in a way that is compatible with the judgment of the Court and not to accept amendments that would render the clause completely unworkable. On that basis, I ask the hon. Member for Huntingdon to withdraw the amendment. If he presses it to a vote, I ask my hon. Friends to oppose it.
John Hemming: The ECHR is connected with the Council of Europe. As the hon. Member for Wakefield said, it has been in existence for much longer than the EU and has nothing do with it. Nevertheless, we have agreed to work within it, and that is the correct position. The Government made the right decision in 1998 to legislate to enable people to use the convention in domestic courts rather than in the European Court alone.
We have had a debate about the judgment’s use of the phrase “exceptional hardship”. That could include non-pecuniary hardship and therefore be broader than material financial disadvantage. To some extent, we may be debating how many angels are on the head of a pin. However, Liberal Democrat Members believe that the phrase in the judgment is what we should include in the legislation, even though there is great difficulty in defining which phrase is narrower and which is broader. Speaking personally, I am happy with the provision. It is not reasonable, for instance, to expect somebody who happens to be of mixed race to associate with somebody who believes that they should not exist. The BNP’s official party policy is that mixed-race people should not exist, so it is entirely reasonable for somebody to be able to say, “I do not want anything to do with those people.” We are creating a situation where only the membership of the union is at stake, not any exceptional hardship. I do not think that there is a big difference between the phrases, “exceptional hardship” and “material financial disadvantage”. In some areas, one of those is broader; in other areas, it is the other one. Nevertheless, if “exceptional hardship” is the phrase in the judgment, that is what we should go with.
Dr. Palmer: I do not want to delay the Committee unnecessarily, but I would like to clarify the point about the convention. My understanding is that it was established well before the EU, as my hon. Friend the Member for Wakefield said. We are signatories to it, and, as a result, we as individuals have always been allowed to go to the Court in Strasbourg. However, even were that not the case, the EU is signed up collectively to the convention, so it would not be not possible to follow the suggestion of the hon. Member for Billericay by ignoring a judgment of the European Court of Human Rights because we do not agree with it without calling into question our membership of the EU.
10.15 am
Mr. Djanogly: I agree with the Minister that the question is not whether we legislate, but how we legislate. We have signed up to the European convention on human rights and, as far as I am aware, this country has never failed to follow the rulings of the European Court of Human Rights, whichever party has been in power. I will not use today’s sitting to debate whether that should be questioned—that is an argument for another day.
My hon. Friends have raised legitimate concerns about the nature of this provision and its intrinsic unfairness, and I agree with nearly everything that has been said. Unfortunately, we are discussing maximising the protections given to the Court’s judgment. The Minister referred to a list of eminent people who took one view or another. We do not feel that the right balance has been struck. The issues involved are more fundamental than whether we want to share retirement homes with racists or people with other nasty views.
Mary Creagh: Is not this debate about the ability of BNP activists or other extreme groups to undo the vital work that trade unions do in getting out an anti-racism message by working covertly or overtly in a union to recruit members for their own purposes?
Mr. Djanogly: I do not think that it is about that in the slightest. We cannot defend liberties by destroying them. We are trying to strike a balance between the interests of trade union powers and those of the individual. That is the crux of today’s debate. As the hon. Member for Birmingham, Yardley said, how fair that balance is depends on our political leanings and our beliefs. This process has already led to a complicated clause of powers and protections. As the old saying goes, you cannot make a silk purse out of a sow’s ear, but anyone who has read the nitty-gritty of the clause will appreciate that it has a go at doing so.
As matters stand, we are not confident that enough consideration has been given to the possibility of material hardship being taken into consideration. On that basis, I should like to divide the Committee.
Question put, That the amendment be made:—
The Committee divided: Ayes 5, Noes 11.
Division No. 1]
Baron, Mr. John
Binley, Mr. Brian
Crabb, Mr. Stephen
Djanogly, Mr. Jonathan
Swire, Mr. Hugo
Burt, Lorely
Creagh, Mary
Engel, Natascha
Foster, Michael Jabez (Hastings and Rye)
Gardiner, Barry
Hemming, John
Kidney, Mr. David
McFadden, Mr. Pat
Palmer, Dr. Nick
Seabeck, Alison
Ward, Claire
Question accordingly negatived.
Further consideration adjourned.—[Claire Ward.]
Adjourned accordingly at twenty minutes past Ten o’clock till this day at One o’clock.
Previous Contents
House of Commons 
home page Parliament home page House of 
Lords home page search page enquiries ordering index

©Parliamentary copyright 2008
Prepared 17 October 2008