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Baroness Turner of Camden: My Lords, I thank the Minister for his comprehensive response, although he will not be surprised to know that we find it rather disappointing. He acknowledged that unions would be disappointed because their view is that they should have a right that should be enforced within the context of the Bill. I am disappointed because reliance on individual rights does not always produce justice; it is often difficult for individuals to stand up and be counted and to have their case taken forward. That applies in other legislation, including equal rights legislation, where one must find individuals to take forward a case. It is not always easy to do that. That is one of the reasons why unions, my noble friends and I wanted written into the legislation a protection of union rights. That proposal was supported by the Joint Committee on Human Rights, which recommended that there should be a remedy for unions and that it should be written into the Bill.

One can only hope that, when the legislation is in place, it will be possible for the protection to which the Minister refers to be fully operative, and for individuals to be protected. That is really what we are talking about. If you give unions the right to take cases forward, you are protecting individuals, who do not have to stand up to be counted and run the risk of being intimidated by their employer. There is no point in proceeding any further with the matter at this stage. I am disappointed: I had hoped that there would be a change of view as a result of the consultations that I knew were taking place. In the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Triesman moved Amendment No. 21:

On Question, amendment agreed to.

[Amendments Nos. 22 to 24 not moved.]

Lord Triesman moved Amendment No. 25:


"( ) that when the offers were made the employer did not wish to enter into arrangements proposed by the union for collective bargaining,"

On Question, amendment agreed to.

[Amendment No. 26 not moved.]

Lord Triesman moved Amendments Nos. 27 and 28:


"(2A) In sections 145A to 145E—
"worker" means an individual who works, or normally works, as mentioned in paragraphs (a) to (c) of section 296(1), and
"employer" means—
(a) in relation to a worker, the person for whom he works;
(b) in relation to a former worker, the person for whom he worked."
Page 34, line 31, leave out "worker" and insert "person"
 
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On Question, amendments agreed to.

Clause 29 [Extension of protection against detriment for union membership etc.]:

Lord Triesman moved Amendments Nos. 29 to 31:


"( ) In subsection (5), for "An employee" substitute "A worker or former worker"."
Page 35, line 10, leave out subsection (7) and insert—
"( ) In section 151 of the 1992 Act (interpretation of sections 146 to 150 and supplementary provision), after subsection (1A) (which is inserted by section 30) insert—
"(1B) In sections 146 to 150—
"worker" means an individual who works, or normally works, as mentioned in paragraphs (a) to (c) of section 296(1), and
"employer" means—
(a) in relation to a worker, the person for whom he works;
(b) in relation to a former worker, the person for whom he worked."
( ) In subsection (2) of that section, for "an employee" substitute "a person"."

On Question, amendments agreed to.

Clause 32 [Exclusion or expulsion from trade union attributable to conduct]:

The Deputy Speaker (Lord Geddes): My Lords, before I call Amendment No. 32, I should advise the House that, if it is agreed to, I will not be able to call Amendment No. 33, due to pre-emption.

Lord Triesman moved Amendment No. 32:


(a) a rule of the union, or
(b) an objective of the union,"

The noble Lord said: My Lords, Clause 32 gives employment tribunals greater discretion to decide the amount of a compensatory award in cases in which an exclusion or expulsion was unlawful because it was mainly attributable to membership of a political party. It disapplies the current minimum award where there were other subsidiary reasons for the union's decision that concerned conduct that was contrary to the union's rules.

During the passage of the Bill, we have discussed the need to ensure that the statute places reasonable obligations on individuals to act in accordance with widely available and accessible information on the union's policies and positions. That is why we refer to the union's rules in the current wording of the clause. However, it must be said that union rule books vary. Some explicitly refer to the union's opposition to racist attitudes or conduct, while others specify only a few proscribed behaviours and leave it to other union documents to set out the union's position on such matters. It is often in such documents that a union's objectives on equality are made known to union members and others.
 
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We recognise, therefore, that there are justifiable concerns about the adequacy of relying only on rule books to ascertain the union's position on equality issues. As a result, we gave commitments in Grand Committee to look again at the area. We have worked closely with the TUC to devise alternative wording that meets the needs of unions and our requirement for transparency, and I am pleased to be able move Amendments Nos. 32 and 34 to meet that need.

I shall say a word about how the amendments will work. In combination, the amendments disapply the minimum award, where the subsidiary conduct is contrary to the union's rules or contrary to the union's objectives, provided that it was reasonably practicable for the person concerned to have ascertained the objectives in question. Because we think that more information about a union's objectives is likely to be available to union members than non-members, the requirements are cast differently for those different groups.

The amendments give the degree of transparency that we have been aiming for and improve the practical implementation of the clause. They satisfy the TUC's concerns on this point, and I hope that noble Lords in all parts of the House will accept them.

The Deputy Speaker referred to the amendment tabled by my noble friend Lady Turner of Camden. She seeks to achieve a similar result by broadening the test that disapplies the minimum award by adding subsidiary behaviour that is contrary to the stated objectives of the union. As was mentioned in Grand Committee and on Report, the fact that something is stated does not necessarily mean that it is sufficiently accessible to the relevant individuals and therefore capable of influencing their conduct. Our fear is that the wording of the amendment would give rise to unnecessary legal debate before the tribunals. The Government have tabled amendments on the matter that meet all the concerns, and, in that light, I invite my noble friend to withdraw her amendment.

In summary, one of the tremendous strengths of the discussions in all parts of this House was the desire to ensure that racist conduct does not afflict unions any more than any other institutions in our society. That has been one of the guiding and driving principles. I thank noble Lords on all sides for their absolute determination to ensure that that happened. I beg to move.

Lord McCarthy: My Lords, we have withdrawn our amendment because the Minister made some very effective points when we last discussed this issue. Now our amendment is not suitable. However, I am not sure about the Government's amendment. I understand that the TUC thinks that it is probably better than the previous one, which it believes was subject to the kind of difficulties of interpretation that the Minister mentioned in the House.

The words,


 
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worry me. I do not know who has to ascertain the objective. There are the two conditions that have to be accepted in order for a person to be rightfully expelled. New subsection (1D) of Amendment No. 34 states:

Does that mean that the tribunal believes that the objective can be ascertained? "Ascertained" is a funny word. Does it mean that the union should say that it has ascertained it? I do not understand why a statement that someone is anti-racist or if members are caught in racist activities or if they express racist statements of various kinds indicates that the objective can be ascertained. The amendment does not refer to evidence: it refers to "ascertained". I am asking very nicely, late at night, for the Minister to tell me what ascertained means and whether it could be improved on and made clear on going back to the other place.


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