Appendix 2: Employment Relations Bill
Letter from Gerry Sutcliffe MP, Minister for Employment
Relations, Competition and Consumers, Department of Trade and
Industry, to the Chair
I would like to thank the Committee for their continued
interest in the Employment Relations Bill. and their consideration
of the DTI memorandum dated 27 April this year. The Bill is to
be considered again at Report on 8 July. I think it would therefore
be timely at this juncture to set out the Government's position
on the points made in the Committee's Thirteenth Report, Scrutiny
of Bills: Sixth Progress Report.
The "Wilson and Palmer" Clauses
The Committee made observations on Clauses 28 to
31 of the Bill. "Inducements and detriments in respect of
membership etc. of independent trade union", expressing particular
concern about compatibility with Article 11 on two points. As
the Government stated during Grand Committee. we recognise that
these are difficult issues. We are therefore considering the two
outstanding points very carefully. consulting key external stakeholders
including the TUC and CBI in the process. We plan to finalise
our deliberations in time for the Bill's Third Reading.
The Committee also commented on the way in which
new sections 145A and 145B treat the employer's purpose in making
offers, and advised the Government to keep these provisions under
review, once they come into effect. I can confirm that the Government
will do so.
Expulsion from a union for reasons related to
the political activities of the member
The Committee has made several observations on the
compatibility of clause 32. "Exclusion or expulsion from
trade union attributable to conduct", with Articles 10 and
11 of the European Convention of Human Rights. The Government
has considered the Committee s report carefully.
The Committee notes that the arrangements in clause
32 do not restrict trade union exclusions or expulsions on grounds
of racist political activities alone, but instead allow trade
unions to exclude or expel on the basis of any political activity.
This approach is firmly based on the existing law and embeds the
Employment Appeal Tribunal (EAT) decision in the recent Aslef
case that "membership of a political party' does not embrace
the activities of a political party. We do not consider it is
either feasible or desirable to enable unions to expel or exclude
individuals only for political activities of a racist or xenophobic
nature. It would be very difficult to draw a workable distinction
between the political activities that were and were not objectionable.
Further. those far-right political parties whose activities are
abhorrent to trade unions usually maintain that they do not pursue
a racist agenda and would be likely to argue that the political
activities in which their members engaged fell outside the activities
defined as objectionable. We therefore fear that this approach
would draw the tribunals into difficult and highly controversial
territory.
The Committee notes that this issue involves striking
a balance between competing rights, but considers that the DTI
memorandum did not contain sufficient explanation why the balance
has been set in the manner proposed. I apologise if our reasoning
was unclear but hope the explanation of the reasons underlying
our approach given in the last paragraph will be helpful. As you
will know, this is a matter on which trade unions, and their existing
membership, harbour strong views. They consider their ability
to function effectively as free trade unions would be endangered
if they were infiltrated by agitators from racist or xenophobic
political parties. They also believe that section 174 in its current
form inhibits them from dealing robustly with such agitators.
The intention of the amendments is therefore to allow unions greater
latitude to expel and exclude such agitators while maintaining
the present principle in section 174 that unions should not expel
or exclude individuals simply because of their membership of a
political party.
The Committee is concerned that unions could lawfully
expel or exclude an individual for normal, mainstream, political
activities. That is an understandable reservation. However, I
should point out that there is no evidence to suggest that trade
unions have ever acted in this way, either before the introduction
of the protections now contained within section 174 of the 1992
Act, or subsequently. We are therefore confident that cases of
that type would not arise in the future. Should they occur. we
fully recognise that we may need to explain to a court the compatibility
of the domestic law with the ECHR. However, for the reasons given
in our memorandum to the Committee, the Government considers that
the amended section will comply with Articles 10 and 11.
In conclusion, the Government believes in proposing
the amendments it has acted within the margin of appreciation
allowed to it and is acting appropriately to ensure the relevant
freedoms of association and expression are maintained. In consequence
we do not intend to make changes to this aspect of the Bill.
23 July 2004
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