Employment Bill [Lords]

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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.
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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