The
Minister of State, Department for Business, Enterprise and Regulatory
Reform (Mr. Pat McFadden): These two amendments
deal with the issue of when someone is a member of a political party
and the definition of a political party for the purposes of the clause.
Were the amendments to be passed, those definitions would of course
apply across all the various subsections of section 174 of
the Trade Union and Labour Relations (Consolidation) Act
1992.
Amendment No.
17 deals with the definition of party membership in terms of time. The
amendment would limit trade unions’ ability to expel or exclude
people by requiring the unions to disregard any party membership that
ended more than a year—
Mr.
Hugo Swire (East Devon) (Con): Will the Minister indulge
those of us on the backest of the Back Benches by speaking up a little
bit, so that we can catch every
word?
Mr.
McFadden: I am happy to speak more loudly, although I was
trying to calm the Committee down after the last exchange.
As I said,
the amendment involves disregarding any party membership that ended
more than a year before the person applied to join a trade union. The
issue was also raised in the other place when the Bill was discussed
there. I appreciate what is being said with genuine feeling in the
Committee about freedom of belief and the important principle enshrined
in that. We all hold that dear. The judgment that gave rise to the
legislation was about balancing the freedom of such belief with freedom
of association and the rights of union members to have a view on with
whom they wished to associate. So, there is a balance of freedoms here.
The judgment concluded that unions should be free to decide, in
accordance with their rules, questions concerning admission and
expulsion. I
shall quote from the judgment, as I did this morning. The judgment
noted that unions often hold particular views. Paragraph 39
states: “Article
11 cannot be interpreted as imposing an obligation on associations or
organisations to admit whosoever wishes to join. Where associations are
formed by people, who, espousing particular values or ideas, intend to
pursue common goals, it would run counter to the very effectiveness of
the freedom at stake if they had no control over their
membership.” We
as political parties have some control over membership. In my party,
over the years, we have expelled people for various crimes. I remember
that particularly a couple of decades ago, when I was starting out in
politics and party membership. Of course there has to be due process,
natural justice and so on, but it is not beyond the bounds of reason
that a collective organisation, such as a party or trade union, could
expel or exclude an individual. The judgment was drawing attention to
that kind of
balance.
Mr.
Binley: I make the point that when ASLEF appealed its case
it was for a member who had been expelled because he was a member of
the BNP at that time. Indeed, if that were the case in point, that is
fine—there is protection there. My concern in this
respect—although I understand that my concerns overall are stand
part arguments—is that there is no time limit to all of this. In
given instances, the union can be vindictive and victimising just as
much as an employee can. It is the time frame that allows that to
happen, and not the actual membership. If the provision was restricted
to membership, I would understand it more, but if the union has an
open-ended option to take action on the basis of what is said to be a
given history, I find that much more difficult to
accept.
Mr.
McFadden: I shall come on to the issue of former
membership. I understand the hon. Gentleman’s point. In the case
of former members, it may be that someone’s views remain exactly
the same, even though they are no longer a member of a particular
political party. It may be that their views have changed. Either case
could be true. In the latter case, provisions in clause
18(2)—the
proposed new subsections (4G) and (4H) of section
174 —would apply. Those provisions require a
trade union to act in accordance with its rules; they say that there
should be “a fair opportunity” to make representations,
which should be “considered fairly”. That is, precisely,
the natural justice point made by Lord Morris of Handsworth that I
quoted this morning. If, for example, someone had had a brief
flirtation with an extremist party in their youth, many years before,
as the hon. Member for Huntingdon said could be the case, but that this
was very different from their views today, that would be properly
considered under the protections and provisions in the
clause. There
is a further point. The effect of the amendment would be that anyone
joining the BNP or a similar organisation after they had joined the
union would be in a position where it would not be legal to expel them,
because the emphasis of the amendment is on the 12-month period before
joining the union. In practical terms, there is a significant problem
with the amendment, apart from the fact that it seems to be based on a
lack of recognition of the protections that have been built into clause
18. I
refer to the points made by my hon. Friend the Member for North-East
Derbyshire, who said that the amendment would result in unions being
expected to know the dates when individuals were registered as a member
of a party when even the parties themselves may not know
that. Mary
Creagh (Wakefield) (Lab): We had a debate on Tuesday about
the difficulties that enforcement officers have in acquiring records
and copies of documents from employers. Does the Minister agree that
the amendment would place an onerous imposition on trade unions if they
were expected to go into the headquarters of the BNP and ask for its
membership records, and does he think that the records would be up to
date or freely given to trade
unionists?
Mr.
McFadden: That illustrates the practical problems
associated with accepting the amendment. As my noble friend Lord Bach
said, it would result in trade unions and a member in such a position
playing cat and mouse, and a process that could produce a platform for
vexatious actions. As I have said all along, this is delicate territory
and we have to proceed with care and caution. That is why safeguards
have been built into the clause that take account of the issue raised
by the hon. Members for Northampton, South and for Huntingdon about a
youthful flirtation that was left behind many years
before. I
would also like to say a few words about amendment No. 18, which seeks
to provide a definition of “political party”. We do not
believe that it is necessary. The statutory provisions limiting the
ability of a trade union to exclude or expel persons for their party
membership were first introduced in 1993. No definition of political
party was thought to be needed at that time, and there has been no
evidence since then that not including a definition in the legislation
introduced by that Government has caused a
problem. I
should also point out that although including registration with the
Electoral Commission in a definition of a political party would cover
most parties, it would not cover every political party in the country.
Emerging parties or parties that do not stand for election in their
own name do not need to register. That is precisely the territory that
we are talking about with extremist
organisations. There
is also a difficulty with the foreign aspect. It is true that it was
discussed in the other place, but how can we assume that every other
country has equivalent registration systems? I doubt that that is the
case. Again, the amendment would create practical hurdles that unions
would find well nigh impossible to
overcome.
Dr.
Palmer: Following up on my point about Thompsons
Solicitors, would the Minister agree that, in practice, a trade union
would be able to have a rule to exclude members of parties with a
racialist ideology, or something general, rather than specifying a
particular
name?
Mr.
McFadden: My hon. Friend is right to draw me back to his
point. I draw his attention to subsection
(2): “Conduct
which consists in an individual’s being or having been a member
of a political
party”. It
does not say that the union must specify in the rule book the exact
name of the political party. That also came up in the other place,
where on behalf of the Government Lord Bach
said: “Membership
need not be of that political party but of any political party whose
values contravene the union’s rules or
objectives.”—[Official Report, House of Lords, 2
June 2008; Vol. 702, c.
28.]
Michael
Jabez Foster: My reading of subsection (2) is that that is
where the problem lies, because, to refer to it more fully, it
says: “Conduct
which consists in an individual’s being or having been a member
of a political party is not conduct falling within subsection (4A) if
membership of that political
party”. The
reference to “that political party” seeks to provide a
particular rather than a more general
definition. 1.30
pm
Mr.
McFadden: My reading of the provision is that that
reference relates to the political party mentioned above. I hesitate to
differ with hon. Members who have good legal knowledge, but our view is
that it does not require the specification of named political parties
in the union rule book. I think that that is at the heart of my hon.
Friend’s
concern.
Mr.
Binley: Therein lies the concern. The Minister said that
someone should not be banned because of a youthful flirtation. We have
all had youthful flirtations in one way or another, but they are not
matters for debate today. To quote Paul on the way to Damascus, a
person can change his belief on an action instantly. It seems to me
that therein lies the problem, because someone who was a member of the
British National party, the Communist party, the Nazis or God knows
what else that we might find abhorrent may decide that they no longer
believe in that. That is why I argue that the issue should be an
individual’s view, not their
association. I
do not understand why the matter cannot be cleared up by saying that if
an individual’s views clash with the constitution of a trade
union, that individual cannot be a member. I cannot see that the issue
is association. Will the Minister explain why many members of the
Labour party who support me in Northampton were adamant
that they would support Tony Blair five years ago? People change their
minds. The issue is not time. Time is an
instant. The
Chairman: Order. Interventions are becoming rather long,
and sometimes are off the
subject.
Mr.
McFadden: The hon. Gentleman asks why the provision is
about membership of a political party. That was the nature of the case
that was taken to the European Court. As the hon. Member for Huntingdon
said, since 1993, capacity has been in place for a union to expel or
exclude someone on the basis of conduct. The change in clause 18 arises
from that case, and refers to membership of a political party. The
Government’s task, and our task as a Parliament, is to try to
find a clause that matches the requirement imposed on us by the
European Court judgment, but also does that in a way that
preserves natural justice for the individual. That is what we have
tried to do through clause
18. If
I may return in seriousness to the point about youthful flirtation, the
safeguards that we have built in for representations to be made,
considered and so on will provide ample opportunity for someone to say,
“That was a long time ago in my youth.” I cannot
understand why a trade union would want to expel or exclude someone in
such
circumstances.
Natascha
Engel: The ASLEF v. Lee judgment is unusual, and
the circumstances hardly ever arise. We are trying to legislate for an
eventuality that does not happen often, and we must recognise that the
circumstances would be
extreme.
Mr.
McFadden: I agree with my hon. Friend. As I said this
morning, unions are recruiting members and trying to attract people,
not rooting through their lists trying to get rid of
people. Barry
Gardiner (Brent, North) (Lab): The hon. Member for
Northampton, South said that this matter should be about an
individual’s views rather than membership of a party. Perhaps he
should walk down the corridor and look at that wonderful painting of
Queen Elizabeth I, where she is saying that she has no desire to make a
window into men’s souls. The individual view is private, whereas
membership of a party is a public representation of certain views and
an expression of them. That is an important distinction. The hon.
Gentleman would not want a Big Brother state that inquired into what
each of us privately thought, any more than I would. Going down that
route would be very
dangerous.
Mr.
McFadden: My hon. Friend makes the point well and more
eloquently than I could. I am drawing to a conclusion. I talked about
the difficulties of finding where foreign political parties were
registered and so on.
Mr.
John Baron (Billericay) (Con): The hon. Member for Brent,
North made an excellent point that, in turn, argues against the
legislation as a whole. The legislation
seeks to do exactly what he referred to—make a window into
men’s souls, and judge somebody on their beliefs rather than
their conduct.
Mr.
McFadden: I thought that this quarrel among Conservative
Front Benchers could be sorted out. It happens with every
amendment. The
hon. Member for Huntingdon, whom I believe is also the shadow
Solicitor-General, told us that his party’s position is to
legislate in line with ECHR judgments. Twice, the hon. Member for
Billericay has indicated that he does not wish to do so, and objected
in principle to the legislation being introduced at
all. Either
the Conservative party believes in legislating in line with ECHR
judgments or it does not. If it does, as the hon. Member for
Huntingdon, the Front-Bench spokesperson, said, the issue is about how
we can meet that judgment. If it does not, that is a significant
departure, which has been mentioned twice by the hon. Member for
Billericay and which will be noted. The Conservative party must make up
its mind.
John
Hemming: I take issue with one of the assertions made by
the hon. Member for Billericay. The decision to join a political party
is a conscious decision to do just that. It may or may not express
views. I would not wish to see legislation based on expressing views,
but this matter is about the conscious act of joining a political party
and the freedom of association.
Mr.
McFadden: As I said in response to the hon. Member for
Northampton, South, the judgment was about membership of a political
party.
Finally, I
draw the Committee’s attention to the difference between
exclusion and expulsion. Expulsion would be when someone was already a
member of a trade union, and exclusion when someone was not a member
but sought to join. In that sense, amendment No. 18 might be
problematic as it seems to deal only with the exclusion of those
seeking union membership. If a political party were established after
an individual joined a trade union, I am not sure whether that would be
covered.
In summary, I
stress again that this is delicate territory, but the amendments go
well beyond what is required to comply with the judgment. They could
make it impossible for trade unions to use the powers in clause 18,
even when in line with the safeguards set out in the clause, which
cater for instances such as those quoted during the debate. On that
basis, I hope that the Opposition will not press the
amendment.
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