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Lord Morris of Handsworth: My Lords, I assure the noble Lord that the TUC has expressed its concerns not just to my noble friend Lady Turner but to many others. However, I suspect that, when the TUC looks at the amendment and the principles that I expounded, not only will it begin to recognise that Britain’s ability to meet its obligations and the preservation of trade unions as free democratic organisations have been safeguarded, but it will, I am sure, be the first to accept that individual members’ rights to redress—not just to remedies, but to proper protection—have been ensured. Furthermore, if the Bill, when it reaches the statute
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Lord Borrie: My Lords, I suspect that most Members of this House will agree with many of the principles and details mentioned by my noble friend Lord Morris of Handsworth, not only in answer to the noble Lord, Lord Campbell of Alloway, but in the main part of his speech. There is a great deal of agreement that the Government and the noble Lord, Lord Lester of Herne Hill, who is absent, should be congratulated on the amendment. However, to some extent I share the concern of the noble Lord, Lord Campbell of Alloway, that undertakings made to him only a few days before the Recess by my noble friend Lord Jones of Birmingham, who is also absent, have not been carried forth. An amendment suddenly appeared during the parliamentary Recess. Like the noble Lord, Lord Campbell of Alloway, and no doubt others, we first came across it only today. If this is to be the definitive amendment on this key provision in the Bill, it needs to be right. I am not sure that it is right; in other words, therefore, I agree with a great deal of what was said by my noble friend Lady Turner of Camden.
I am among those who have received briefing from the well known firm of trade union and employment lawyers, Thompsons, which has huge and lengthy experience. One point that it makes—and I think that my noble friend Lord Bach owes it to my noble friend Lady Turner of Camden to answer this—is that proposed new subsection (4C) seems to require a union to have either a rule or an objective that outlaws membership of “that political party”.
I want to develop the point made by my noble friend Lady Turner. As we are all interested in politics, we know that the extreme right—and in my younger days the extreme left as well—is always breaking up into splinter groups. Perhaps the “far- left” now has no particular meaning, but certainly trade unions do not wish to have to put up with membership that includes those of extreme right views. It would no doubt be the simplest thing in the world for the BNP to call itself “BNP 2008” and then, on 1 January, to change the name to “BNP 2009”; it would then be a different political party. It has changed its name in the past from the National Front to the BNP to something else—I cannot remember the various names that it has had. Thompsons pointed out to some of us in its briefing:
“A requirement that the relevant political party be named in the Rules or objects ... would be an invitation to the far right parties liable to otherwise fall foul of trade union Rules and objects to regularly change their names”.
However, the crunch question is: “Does it matter?”. It matters from the point of view of the question with which we are all concerned: will the new Bill and the trade union rules made thereafter be compliant with the European Convention on Human Rights? Here, perhaps I may again quote from the Thompsons briefing, which states that,
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- “the additional gloss contained in the redrafted (4C) requiring that a union has either a rule or an objective which outlaws membership of ‘that political party’ fails to understand the ECHR’s decision or properly amend the law in the light of the ECHR decision and will be open to further challenge either in the domestic courts or the ECHR in an appropriate case”.
The Minister must give an answer to that because this amendment is in his name and that of the well known human rights lawyer, the noble Lord, Lord Lester of Herne Hill. I am sorry that the Minister is on his own and that he does not have the assistance of the noble Lord, Lord Lester, this afternoon, but does he really think that the amendment and the Bill that will be sent off to the other place will be compliant with the European Convention on Human Rights?
Lord Hoyle: My Lords, before my noble friend replies, I want to associate myself with the remarks of my two colleagues on this side. I fully support the TUC in this. My noble friend Lord Morris says that solicitors may have a vested interest, but surely the vested interest will be in more litigation, not less. This provision is likely to lead to more litigation and I put on the record the fact that Thompsons is totally opposed to that. In the end, it is not just the narrow membership issue that is at stake, but the freedom of trade unions to operate, to associate and, if necessary, to exclude justifiably from membership. What has been said is quite right. If we leave the issue where it is, a trade union will have to name in its rule book the organisation concerned, which, as has been said, could lead to a far-right organisation changing its name and continuing to change its name so that a particular member would never be expelled from the union. That is the truth of it.
I am afraid that I do not like many things about the amendment. It is far too narrow and I do not believe that it will fulfil the objectives that have been put forward. I think that more litigation will result from it. We hoped that the unions would not have to go to Strasbourg again on this matter but I think that this makes the situation worse. I say to my noble friend that complaints can be made to the certification officer, so why do they have to go back to the court? Is this a matter of bypassing? The certification officer is there to deal with such matters. I am sorry that it has come to this, but we need an explanation from my noble friend Lord Bach. It would have been more straightforward to take the first proposal rather than this amendment. I am sure that the TUC will not rest and that it will be very upset if this is carried through. The only objective open to it is to continue its lobbying in another place. I hope that my noble friend will pay attention to what we are saying.
Lord Razzall: My Lords, with some trepidation, I support the amendment to Clause 18, which stands in the names of the noble Lord, Lord Jones of Birmingham, and my noble friend Lord Lester of Herne Hill. As I said at Second Reading, support for this has been reciprocated on all sides of the House. I am standing in for someone who is regarded as, if not one of the world’s experts on human rights, certainly one of the UK’s experts on human rights; he is very sorry that he cannot be in his place today. However, as a result of
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Before the Minister speaks, perhaps we should go back a little and remember what the amendment and the debate on this clause are about. I think that I am right in saying that it is common ground that we are under an obligation to implement in our legislation the ECHR decision in Aslef. I say that I think that it is common ground because I know that it is common ground on the other side of the House and it is certainly common ground on the Liberal Democrat Benches but, many weeks ago in the Moses Room, there was a moment when I thought that the Tory Opposition were flirting with the concept that we are under no obligation to legislate, in breach of the various treaties that the British Government have signed and which have been endorsed by every Tory Government of which I am aware. The noble Lord, Lord Henley, might have suggested that, but I do not think that he continued with the argument, so I suspect that we are on common ground on all sides of the House that we are under an obligation to implement or to put into our law the result of the Aslef case.
The noble Lord, Lord Morris of Handsworth, put it clearly when he said that, in taking the heat out of this, the Government went out to consultation on whether to go to solution A or solution B. The original clause had solution A, which I know that the TUC supported—it did not have to have its tanks on the Government’s lawn at that stage. The amendment before us is a form of option B, so we are really talking about a straight choice between option A and option B.
It will be of no surprise to noble Lords that from these Benches, as articulated until today by my noble friend Lord Lester of Herne Hill, we have always been in favour of option B, for the reasons that the noble Lord, Lord Morris of Handsworth, gave. I ask Members opposite who have had their reservations about this: do they really not accept that proposed new subsection (4G) is not the way that any responsible trade union would conduct itself? Do they really accept that anyone can be expelled if,
Do they really accept that someone can be expelled from a trade union if, under subsection (4G)(b),
for all the reasons given by the noble Lord, Lord Morris of Handsworth?
I understand the argument about subsection (4G)(c), which is the exceptional hardship provision, because the TUC position ably articulated by the noble Baroness, Lady Turner, is: why should we include that when we no longer have the closed shop? I know that I speak for my noble friend Lord Lester of Herne Hill and others on these Benches when I say that we cannot necessarily foresee circumstances under which,
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- “the individual could lose his livelihood or suffer other exceptional hardship by reason of not being ... a member of the union”.
That is a fail-safe provision, which it is prudent to have in the Bill.
Two objections came from the noble Baroness, Lady Turner, who reflected the views of the noble Lord, Lord Campbell of Alloway. The first was that in some way, were we to adopt option A and have the original Clause 18, that would magically reduce the opportunity for litigation. I just do not see that. I do not see that if someone had been dismissed in ways not according to the union’s rules or if someone had been dismissed because the decision had been taken unfairly, that would mean that that person would put his hands up and say, “That’s fine, they went for option A, therefore I can do nothing about it”. I have read the briefings from other firms of solicitors. I do not see the argument that somehow going for the original Clause 18 would reduce the opportunity for litigation if the conditions under which the individual had been expelled were listed in paragraphs (a), (b) and (c) of subsection (4G). I do not accept that argument.
As for the point made by the noble Lord, Lord Borrie, about the definition of a political party in Clause 14, to take the remarks made by the noble Lord, Lord Morris of Handsworth, and speaking as an ex-lawyer, I do not think that it will take Thompsons or other firms long to draft a rule book that gets round the issue of the BNP changing its name. I can see how to do it. If anyone wants me to, I will go outside and spend five minutes drafting it, but I suggest that we leave that to Thompsons. In the mean time, I am happy to support the amendment.
Lord Bach: My Lords, I thank all noble Lords who have taken part in what has been an absolutely fascinating debate on the government amendment. I will of course deal with the amendments spoken to by the noble Lord, Lord Henley, who I thank for his remarks.
I feel obliged to make one or two comments in response to the speech of the noble Lord, Lord Campbell of Alloway. First, I emphasise how grateful the Government, and particularly my noble friend Lord Jones, have been to the noble Lord, Lord Campbell, for the interest that he has taken in this and his suggestions, but there seem to be some mistakes in memory. As I understand it, the noble Lord, Lord Campbell, saw my officials last Friday. As a result of that meeting, it was suggested to him that he might like to speak to my noble friend Lord Jones over the weekend: that is, between my noble friend coming back from Mexico and going to Azerbaijan—in both cases to try to win exports for this country, let it be said. He had a brief window during the weekend when he was in the UK, and was willing—indeed, wanted—to talk to the noble Lord. However, as I understand it—I was not present—the noble Lord, in his usual generous spirit, commented that he did not want to interrupt my noble friend’s brief weekend. That discussion was possible, but it was not taken up.
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Lord Campbell of Alloway: My Lords, the noble Lord is quite right; I did not want to inconvenience his noble friend. However, I left my private telephone number at home. The arrangement was that if he felt like calling me up, I would be there.
Lord Bach: My Lords, the very last thing that anyone on the government Front Bench would want to do is to offend the noble Lord in any way in these matters. That was certainly no one’s intention. The noble Lord also asked us to have regard to his amendments, although he has not moved them this afternoon. I assure him today that we certainly will.
My noble friend Lord Borrie suggested that the government amendment was tabled during the recess. Actually, it was not; it was tabled on Thursday 22 May, which is the day on which we went into recess. Noble Lords will remember that Report was on Monday 19 May. We worked very hard, or at least my officials did, to get the amendment into a workable form before the recess. The convention, if not the rule, suggests that Third Reading government amendments should be tabled well in advance, so we tabled it on Thursday 22 May. I wrote a letter to noble Lords with the amendment, and I can only apologise that it did not arrive sooner. I thought that I had made it quite clear that those letters should be got to noble Lords as soon as possible, and I can only regret that they were not. I particularly regret that today is the very first day on which noble Lords have had sight of this significant amendment. The amendment was forecast on Report, but of course looking at the amendment itself is what is important. As I said, it was laid down on 22 May. It could not have been tabled any quicker.
On the other amendments, I shall try to deal with the points that have been made in what has been an extensive debate. The noble Lord, Lord Henley, moved Amendments Nos. 4 to 6, which seek to prevent trade unions being able to exclude or expel on the basis of former membership of a political party. Our stance has not changed, I am afraid. We think that that would place a further limit on the freedom of trade unions to set and apply their rules, and therefore run contrary to the thrust of the ECHR judgment.
The noble Lord said on Report that he was opposed to trade unions being able to expel or exclude on this basis, even if an individual had only recently resigned his or her membership. This would provide scope for infiltration of trade unions by those who hold objectives and views which are incompatible with those of the union. It is easy to foresee a situation in which a BNP member resigns his membership on learning of a union’s intention to expel him only to rejoin once the threat of expulsion has passed. This cat-and-mouse cycle could continue indefinitely, imposing a significant administrative burden on the union and producing a loophole for vexatious action. This amendment would substantially frustrate the ability of trade unions to expel or exclude on the basis of political party membership and is, we think, contrary to the spirit of the ECHR judgment. It is interesting that the Joint Committee on Human Rights, in its consideration of how best to respond to the judgment, also included expulsion or exclusion on grounds of former membership.
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We understand the argument that individuals change their political beliefs and accept that this can be done genuinely, wholeheartedly and with none of the malicious intent that I have just mentioned in my example. I am equally certain that trade unions accept this, too. Unions are in the business, as has been said, of recruiting members, and they will not seek to deny membership to those who have genuinely changed their views. Indeed, there are a number of well known examples of that happening. We have to remember that unions still need to follow fair procedures when expelling someone on the grounds of their former membership. The government amendment ensures that an individual has a fair opportunity to make representations and that those must be considered fairly by the trade union. This gives ample scope for that person to show that they no longer hold the same political beliefs.
Amendment No. 7, also in the name of the noble Lord, Lord Henley, is similar to an amendment that was tabled on Report. It seeks to define what type of organisation qualifies as a “political party”. We maintain our position at Report. We should be wary of introducing new wording to this legislation which is not strictly necessary. As I pointed out then, no definition of what constitutes a political party has existed in relation to these provisions, which were first introduced in 1993. As far as I am aware there have been no problems at all as a result. No problems were mentioned either in this debate or on the previous occasion.
The amendment would also create a serious problem. By defining a “political party” as only those that are registered within the UK, the amendment would exempt from this legislation the many members of British trade unions who are foreign nationals. I am delighted to be able to repeat that those numbers are increasing. Some of those individuals will be members of political parties in their own countries. While I am sure that the majority of those parties will have objectives that are entirely compatible with membership of a trade union, it is a fact of life that political extremism is found in all countries. Trade unions must be free to take action against such individuals while adhering to the general safeguards that our amendment provides. That is why the Government cannot support Amendment No. 7.
Perhaps I may turn to other comments made during this interesting debate. I say to the noble Lord, Lord Campbell of Alloway, that the government amendment to Clause 18 strikes that balance between the competing Article 11 rights that the ECHR was so concerned about. Our amendment makes that clear.
I am very grateful to my noble friend Lady Turner for her part in these debates. She spoke of breach of contract. There is no new ability for individuals to bring a claim for breach of contract as a result of our amendments. It has always been possible under option A—what Clause 18 looks like at the moment—for an expelled individual to bring a claim for breach of contract if a union breached its own rules in expelling him. However, an excluded individual never had a claim for breach of contract. This amendment provides additional safeguards for
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My noble friends Lady Turner and Lord Borrie asked whether we felt that option B is compatible with the judgment of the European Court. We are confident that it is. As I have just said, the JCHR suggested a similar amendment to the one we have moved today. My noble friend Lady Turner argued that our amendment would make it harder for trade unions to expel or exclude on these grounds, but under current law trade unions cannot simply expel or exclude on the grounds of political party membership. Therefore Clause 18 as amended gives trade unions more freedom than they currently possess.
My noble friend Lord Hoyle talked about the role of the certification officer and raised the issue of using that officer as a remedy. The certification officer is a useful route for individuals who may have a complaint, but it is not available for exclusions, only for expulsions because the role of the officer is limited. My noble friend also said that he wanted to keep cases out of the courts. In fact the remedy for someone who is excluded would have to be through the employment tribunal.
Lastly, I turn to the point made by my noble friends Lord Borrie and Lady Turner about unions needing to identify and proscribe political parties in their own rules or objectives. We have thought about this and we do not think that it is necessary. We believe that general rules or objectives about the union’s political beliefs or attitudes, stating what it favours or what it dislikes, such as fascism or extreme xenophobic political parties, should suffice. Likewise, non-political rules relating to anti-racism or cultural pluralism may be used to show that membership of an extreme political party is contrary to the union’s rules or objectives. Membership need not be of that political party but of any political party whose values contravene the union’s rules or objectives.
We believe that trade unions in this country play a crucial part in protecting the rights of workers and we have put into effect, as we were bound to do, the ASLEF judgment. That judgment gives trade unions greater freedom than now to exclude or expel members whose political party membership is in opposition to the union’s political beliefs. So this is a sensible step forward in terms of giving trade unions the extra power which the court said that they should have. There is a genuine disagreement about which of the two options should be adopted, and that disagreement has been debated in this House from day one of the Bill. The Government have come to the view that our amendment is the right way to pursue this.
Lord Henley: Since we are formally debating my Amendment No. 4, which seeks to amend Amendment No. 3, it falls to me to withdraw my amendment, as I promised to do. In doing so, I thank the Minister for introducing the amendment in the names of those who have been described as “the absent” noble Lord, Lord Jones of Birmingham, and “the absent” noble Lord, Lord Lester of Herne Hill, and for bringing it forward in a spirit of compromise. I am sorry that he
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Lord Bach: I do not think that as a Government we have to build any links with my three noble friends. They are great supporters of the Government and we are absolutely delighted that, at least on these Benches, we can discuss these matters freely and openly.
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