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The Joint Committee on Human Rights has looked at this question. The noble Lord, Lord Morris, might want to refer to that in speaking to his Amendment No. 36, which is the version of the Joint Committee on Human Rights. There is very little difference between that amendment and Amendment No. 33. Both are designed to introduce safeguards without violating union autonomy. I have always believed, in the course of these debates, that it is not in the interests of trade unions or their members to leave these matters to common law and the Queen’s courts, as used to be the case before there was any statutory framework. When I was rather younger I used to appear before the courts in trade union cases. I was always uneasy about the way in which we obliged judges to intervene and provide remedies in these cases.
I also think that legislation should do its best not only to spell out the safeguards but also to ensure that as much as possible mischievous and vexatious litigation is avoided. The way in which the Government have approached this historically is, after the judgment, to publish a consultation paper with two options. The first was to do away with all safeguards and, essentially, leave it to the common law. The second was to produce adequate safeguards in the legislation. Our argument was that we should go for the second option and not the first.
It is fair to say that the TUC and the trade unions which gave their views during the consultation wanted there to be no statutory safeguards. If I were to be frivolous, I would say that power is delightful and that absolute power is absolutely delightful, and that, therefore, it is understandable to say there should be no safeguards at all. But that would not be a fair way of putting it and I fully respect the trade union position on this.
The way in which the substantive amendments in my name and that of the noble Lord, Lord Morris of Handsworth, operate, essentially, is to provide for three safeguards in a case where a trade union wants to exclude or expel on the basis of membership of a political party. These come out of the judgment of the European Court of Human Rights rather than out of the air. The first safeguard is that the political party concerned, and membership of that party, should be in conflict with the values and ideals of the trade union itself. Obviously, if that is the case, that is the starting point to justify expelling or excluding.
Secondly, the decision should be taken in accordance with the rules of the trade union, including fairness, which, in any case, the common law courts would compel. The third safeguard is that the individual would not suffer exceptional hardship by reason of the expulsion, exclusion or related conduct by or on behalf of the union rather than anyone else in relation
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Lord Campbell of Alloway: My Lords, I agree with what the noble Lord has just said, but not, of course, with what led up to it. Everything depends now on the response of the Minister. Up to this stage, he has not accepted the case as put forward by the noble Lord. I am not being critical for the sake of it. I am merely stating a fact. Columns 314 to 316 of Hansardfor 13 March 2008—the third day of Committee—show that the Minister does not accept what is proposed by the noble Lord, Lord Lester. In addition, he has had conversations and discussions—about which we do not know now, but about which we shall know eventually, and probably, in the light of what is said in this debate—about what the Minister proposes to do.
As I understand it from the bush telegraph, the Minister is considering whether he will introduce amendments which relate to safeguard amendments to Clause 18; that is, the amendments to which the noble Lord, Lord Lester, referred. According to my information, he is considering whether to do that and then, when he has done that, what he will do. This argument is somewhat sterile until we know what that is because we could divide on some things today, such as what happens to sailors not getting the right wages. However, we cannot divide on this today as we have no idea what the Government will put down on Third Reading.
The noble Lord was good enough to refer to my Amendments Nos. 31 and 32, which I know the Government are considering taking over in any event. They have not said that they will or that they will not, yet they acknowledge the intendment of the amendments, so if those are to be redrafted it will be up to the Government to do it. However, those are not safeguard amendments to Clause 18 but purely procedural ones, and there is a distinction—although, as we will see in a moment, the two overlap.
There is a fundamental issue not just between the noble Lord, Lord Lester, and myself but between the noble Lord and the Government. That is whether Clause 18 is wholly effective in affording conformability of our domestic employment law with the conventions in accordance with the Strasbourg court’s decision on ASLEF. I will not go into technicalities, but it referred to certain provisions of our domestic law as being incompatible. Those provisions have to be got rid of, as there is an obligation on the Government to seek conformity.
Clause 18, in the opinion of Government—and in my respectful opinion, which really does not matter as much as theirs—is wholly effective, requisite and sufficient for its purpose of seeking conformity. If that is right, then the Government’s view as expressed in the passage that I quoted from day three in Committee is, again, right; there is in fact no need at all for these safeguard amendments, as they are called. If that is so then the fundamental question raised, on which options should
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Amendments Nos. 33 and 36 have to be considered with some care in another context: do they distort, as I suggest they do, the proper balance of the ordained ASLEF procedures in favour of the trade unions? If there is no need for the trade unions to be protected, as was once suggested at some passage—I do not have it in mind but the noble Lord, Lord Lester, will know where he referred to protection of the trade unions—and the Minister assured the Grand Committee that the trade unions were in no need of such protection, that is another matter which has to be taken into account in this context.
I shall not discuss the nature of the balance because it is related to Amendment No. 31, which is in the last group of amendments and it would be wrong of me to pre-empt it.
Another aspect of these safeguard amendments is the tightening-up of ordained procedures in a way which is wide of the substantial flexibility with which they are to be implemented on the facts and circumstances of each case and on a balance as between the respective convention rights of the trade unions to set their rules and choose their membership, as acknowledged in ASLEF, and the rights of the individual who wishes to join or remain in a trade union. A wide ambit of special, ordained procedures has to be followed. If they are not followed, back you all go to another court in Strasbourg. That is mandatory.
Professor Wedderburn, who has much more experience than I, gave a warning about tightening up what are supposed to be flexible procedures—I shall not go into the details today—but that warning appears to have been not heeded in the context of membership of a political party. You only have to look at the amendments passing through Grand Committee to see that, with every effort to amend, we are starting to move away from, or tighten up, what is a flexible procedure, and this will inevitably engender more litigation.
This is no time for a long speech. I have been too long already. I have tried to do justice, without adding my version to the speech of the noble Lord, Lord Lester. The truth of the matter is that until we know what the Government are going to do, there is no constructive purpose in saying any more. I would like to mention one problem; I am not being critical of my party but I seek clarification. Those on my Front Bench in Grand Committee said that they strongly favoured the safeguard amendment to Clause 18 tabled by the noble Lord, Lord Lester. I oppose it. I am not saying who is right or wrong again, but the party to which I adhere and I were not in agreement. If you look at the Marshalled List, with Amendments Nos. 34, 35 and 37, my party has actually supported in principle Amendments Nos. 33 and 36. Whether it meant to do so or not is neither here nor there. There is plenty of
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Baroness Turner of Camden: My Lords, we had a long discussion on a similar amendment in Committee, as noble Lords will remember. At that stage I drew attention to one of my objections to the original amendment tabled by the noble Lord, Lord Lester. I am afraid, however, that I still have problems with the amendment. I see the noble Lord nods; he realises that I do. The problem that I have is with proposed new paragraph (b) which says,
- “the individual would not suffer exceptional hardship by reason of the expulsion or exclusion or any related conduct by or on behalf of the union in relation to his employment”.
As I said in Committee, we do not have closed-shop agreements any more so we no longer have the power to take into consideration whether a decision of that kind will result in exceptional hardship. Generally speaking, unions now do not have the power that they once had to inflict exceptional hardship by means of withdrawal of employment and so on. This is made quite clear in the amendment, which says, “is permitted only if”. So the union would have to take account of this before it came to a decision to expel someone under the terms of the Bill. As I said, if I had to choose between the Bill and the amendment, I would choose the Bill as it stands. It is possible, as has been indicated by the noble Lord, Lord Campbell of Alloway, that the Government will be prepared to come up with a compromise, but my objection arises from imposing on the unions in proposed new paragraph (b)—
Lord Lester of Herne Hill: My Lords, I am sorry to interrupt the noble Baroness. The notion of exceptional hardship comes out of paragraph 52 of the judgment of the court. If there is no exceptional hardship, the union has no restriction under that heading. I accept that, without the closed shop, the situation where there may be exceptional hardship will be much rarer than otherwise. If exceptional hardship is not inflicted, it does not matter; if it is, it violates the spirit of paragraph 52 of the judgment, which is why it is there.
Baroness Turner of Camden: My Lords, in those circumstances, I hope that we get from the Government a compromise suggestion which might be acceptable to everybody. However, I still feel unhappy about that wording.
Lord Campbell of Alloway: My Lords, this is not a question to be argued here any more. The question is: which argument will the Government accept? We do not know. My noble friend does not know—he probably argues better than me. At least the Government will form their own opinion. The noble Baroness is quite right—
Lord Henley: My Lords, perhaps I should intervene at this stage, particularly as my noble friend Lord Campbell has invited me to do so. I make it clear that I
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I congratulate the noble Lord, Lord Lester, on his drafting and particularly on his putting this matter down quite so early in Bill with his paving amendment. I seem to remember it coming up on days three and four in Committee. To get us to a second amendment on Report shows some skill. As it is the most important amendment with which we have to deal, we are all grateful for it.
We are speaking to a rather complicated group of amendments in that it contains those from the noble Lord, Lord Lester, and my noble friend Lord Campbell. It has Amendments Nos. 34, 35 and 37 from me and my noble friend. I imagine that it includes also Amendment No. 34A of my noble friend Lady Perry of Southwark, which is not on the Marshalled List.
Lord Bach: My Lords, I think that the noble Lord is wrong. None of the two amendments which the noble Lord, Lord Campbell of Alloway, will move in due course is in this group.
Lord Henley: My Lords, I apologise. I am looking at the old draft groupings list. My noble friend will come back to his amendments later. Is that correct?
Lord Campbell of Alloway: My Lords, it is not quite clear. I have tried to keep off Amendment No. 31, because it is right not to pre-empt it. I have said a bit about it so far as it concerns a safeguard amendment which tightens the drafting, but I have not said all that I wish to say about it.
Lord Henley: My Lords, there will no doubt be much more that my noble friend will want to say later on and we look forward to hearing him on Amendments Nos. 31 and 32, whether today or on another day. We are covering the general principle of Amendments Nos. 2, 33 and those also in my name.
As we made clear in Committee, we on these Benches are not exactly happy with the ASLEF judgment. We are not happy that trade unions should be able to expel or exclude people solely on the basis of their membership of a legitimate political party. This sound principle was the reason for the protected status of political party membership in the first place. We all know that some so-called legitimate political parties have deeply unpleasant policies. The party whose member’s exclusion led to this judgment is a fine example of when a trade union might dislike a member signing up to it. However, trade unions already have sufficient powers to expel someone if their behaviour is so incompatible with trade union principles. This was the case even in the instance that led to the European Court of Human Rights judgment. However, we accept that the judgment has now been made and that we in the United Kingdom must now amend our laws in order to accommodate it. In order to mitigate the
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As currently drafted, Clause 18 gives the trade unions far more power than is desirable and is more than the judgment necessitates. We would like to see the power drawn more tightly in order to protect against unfair or improper pressure being put on members of political parties other than the one that trade union officials prefer. We have a great deal of sympathy with the concerns behind the amendments tabled by the noble Lord, Lord Lester. The expulsion of a member should be allowable only if it is undertaken fairly under the trade union’s rules. Due concern should be given to the adverse consequences of such an expulsion. As the amendment in the name of my noble friend Lady Perry highlights, membership of a trade union can bring significant financial support in the form of health insurance, paid positions and so on.
Our Amendments Nos. 33, 35 and 37 highlight two concerns, the first of which is that only membership of registered political parties is considered excludable. There are many political organisations and pressure groups, membership of which should continue to be exempt. Secondly, we strongly object to the idea that former membership should be held against a trade union member; that smacks of retrospective punishment. Even if the resignation from an objectionable political party was recent, such a resignation shows that the membership of the trade union was more important to the person concerned than membership of the political party. Who is to decide whether a member’s resignation was fair?
Lord Campbell of Alloway: My Lords, I apologise for intervening, but whatever the objections—my noble friend is speaking for our party—they have to be implemented within the framework of these ordained procedures. I hope that my noble friend will accept that we cannot by our own domestic law go outside the ordained procedures, or back we go to the Strasbourg court.
Lord Henley: My Lords, I think I can agree with my noble friend but, as he would agree, at this stage we have to hear what the Government have to say before we can respond. We will see what the noble Lord, Lord Bach, or what the noble Lord, Lord Jones—when he comes back from Crewe or wherever he happens to be—have to say. We have been told that most of the Labour Government have gone to Crewe; the noble Lord, Lord Bach, has obviously been spared. We are waiting to hear from the Minister; no doubt the noble Lord, Lord Lester, will listen, as we will do. I believe that the noble Lord, Lord Morris, is rightly going to speak before the Minister, because we are on Report. After listening to him, and others, we will listen to what the Minister has to say.
Lord Morris of Handsworth: My Lords, I speak to Amendment No. 36 and in support of Amendment No. 33. I also take the opportunity to thank the
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I will seek not to rehearse the arguments and the history of how we got here, except to say that I do not take lightly, and I fully appreciate, the Government’s difficulties in seeking to strike the right balance between maintaining free democratic trade unions on the one hand and protecting and defending the rights of the individual on the other. Nevertheless, the amendments address some overall deficiencies in the Bill.
The proposals in the Bill are far-reaching. The most fundamental sanction that can be taken against a trade unionist—the ultimate sanction—is to deny that individual the right to belong to a trade union. Therefore, such action cannot and should not be taken lightly; it can and should only be taken with due regard for natural justice and, of course, the rights of the individual. Neither Amendment No. 33 nor Amendment No. 36 attacks the fundamental principles and substance of the Bill. As has rightly been said, if we were debating this without the background of what was said in the context of the European Court, we might have started at a different point. The amendments seek to ensure that we have proper procedures and safeguards built on the principles of natural justice. It is ironic that the Bill lays out a course of action that would automatically be in a tribunal if an employee was dismissed and lost his or her employment. Therefore, the amendments seek to argue that we should address the procedures and ensure natural justice, as well as that the rights of the individual must always be protected.
The Government argue that, because the closed shop no longer applies, a member who is expelled is therefore not subjected or exposed to any significant detriment. I disagree with that; I take a different view. I have here the schedule of benefits from my union, which runs to about 14 primary benefits, up to incapacity benefit for an accident at work. But the most important benefit that some sections of our membership would enjoy would be legal representation. If a lorry driver is charged under the Road Traffic Act and has to appear in court without proper representation, he or she could end up losing his or her licence—and if you lose your licence as a lorry driver, it follows that you lose your job. For me, that would be a significant detriment. I would go a step further by saying that it could represent substantial hardship. That should be taken into consideration. There are many other examples of benefits, such as two weeks’ convalescence in a convalescent home after a period of illness, but I will not detain the House further on the range of benefits that could by lost by individuals in my union. I will only say that my judgment is that some of these circumstances could be regarded as exceptional.
I recognise that, in terms of safeguards for the individual, the Bill is predicated on remedies. I am not against remedies in proven situations but, in circumstances such as these, the Government owe protection and not remedies to the citizen. Remedies are last resorts. It is said that it is open to an aggrieved individual to go to a certification officer or an industrial tribunal, or to go to the civil courts, but that is not the foundation on which we as a nation have historically built our industrial
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In every industrial relations case where a worker’s job or livelihood is at risk he is entitled to a very basic and fair procedure. That is why we in your Lordships’ House believe it important to state clearly that a person who is to be excluded or, more importantly, expelled should be told the case to be answered. He should also be told the time and place of the hearing. Representation is an important facet of our form of civil justice, but I have read nothing in the Bill about individuals who may feel a deep sense of grievance. How do they put that right? I would like to hear about the appeals procedure. If that does not appear in the Bill, the relevant codes of practice through the certification officer or, preferably, ACAS should make it absolutely clear.
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