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.
Swire: I sense that in his heart of hearts the Minister is
slightly uncomfortable with the clause. I am sure that he is honest at
all times, but if he could be
more so now, I think that he would say that he is uneasy. Was the clause
inserted at the instigation of the unions, or did it arise out
of discussions with them? If so, was that some time before or after the
Government gave the unions £10 million towards their
modernisation programmes, or before the unions gave the Government
£10 million
back?
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—
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.
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?
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] Foster,
Michael Jabez (Hastings and
Rye)Question
accordingly negatived.
Further
consideration adjourned.—[Claire
Ward.] Adjourned
accordingly at twenty minutes past Ten o’clock till this day at
One
o’clock.
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