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3 Apr 2008 : Column GC171
3 Apr 2008 : Column GC171
3 Apr 2008 : Column GC171
Thursday, 3 April 2008.
The Committee met at noon.
[The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) in the Chair.]
Employment Bill [HL]
(Fourth Day)
Clause 17 [Exclusion or expulsion from trade union for membership of political party]:
On Question, Whether Clause 17 shall stand part of the Bill?
Lord Campbell of Alloway: I will try not to take too much time. At the outset I have had to give notice that a little local difficulty has arisen as to the intendment of Clause 17. It also relates to Amendment No. 26A. It is not merely technical but fundamental, so I have no option but to take it and bore you all with why, in the shortest possible time, it must be taken out. It will of course be a matter for decision on Report, but this difficulty warrants clarification on any showing before Report. That is the object of this exercise.
This difficulty may well have arisen because, as I have discovered, as yet there is no settled policy on this in my party; I cannot speak for other parties, but I suspect that I may. I think that I have discovered that there is as yet no settled policy in the Labour Party, but I do not know and can only speak subject to correction. This was acknowledged at Hansard col. GC 304 on 13 March by my noble friend Lord Henley, who said that there was as yet no decision as to the correct approach. That speaks for itself. A difficulty also arises in that many noble Lords may have been speaking for themselves at no one’s behest—of which I am, I suppose, a prime example. Of course, I seldom speak at anyone’s behest. This may have led to difficulties with the parties, which must be settled at a different level from where we are today, but it must be met.
In view of the way I put things, and dealing with how people speak for themselves and not merely for their party, I oppose Clause 17. I opposed it at Second Reading for reasons given under option A of the Library Notes, because it was open to abuse. I still oppose it for that reason. In Grand Committee, Amendment No. 27 was moved to amend Clause 17. I opposed it because of distortion of the balance, to put it simply, in favour of the trade union movement and for the reasons given under option B of the Library Notes. It found little favour with the Minister, the TUC, the noble Lord, Lord Wedderburn of Charlton, or—if I remember correctly—the noble Baroness, Lady Turner. However, it attracted the noble Lord, Lord Henley, who said that it would be “very strongly” supported.
Now one gets to the intendment of Clause 17. The Minister rightly said that the concept was to seek compatibility of our domestic law with the decision of the Strasbourg court in ASLEF, and that:
“The European judgment is clear: there are no ifs or buts. We are therefore obliged to make the consequential changes to our
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is all about. I totally agree. That was said after my noble friend Lord Henley had asserted that the basis on which you left out Clause 17 was that there was no obligation to follow the decision of the ECHR, because, as he said:
“In my submission, the judgment of the European Court of Human Rights is not binding. We do not have to legislate on this”.—[Official Report, 13/3/08; col. GC 313.]
I thought that my party was supporting my opposition to the clause standing part, but for a reason that I could not conceivably accept. It was only when I tried to get down into the issue that I discovered that many Members of the Committee were probably speaking for themselves and not for their party. That matter needs attention before Report.
Observations were made by my noble friend on Amendments Nos. 26A and 27 which related to Clause 17 stand part. Amendment No. 26A, which reflects the essence of the reasoning in ASLEF, will be redrafted to reflect conformity with the Long Title. At the moment, it is outside it and is defective. No one told me that, but I have had another look at it and come to that conclusion. That will be amended to bring it strictly within the Long Title. Amendment No. 27 is apparently to be redrafted to correct error, having eventually succumbed to the Wedderburn creeping barrage, which hit its mark in due course.
It will be for the House to decide whether Amendment No. 26A commends itself and, if so, whether Clause 17 is otiose, and whether Clause 17 stand part, howsoever amended—it looks as though it will be amended again by a revised Amendment No. 27—it being a common purpose of Clause 17 and Amendments Nos. 26A and 27 to amend our domestic law to seek compatibility, Section 174 of the 1992 Act having been found not to be compatible. That is the fundamental matter on which I hope agreement can be reached before we venture forth on Report. It is a fundamental principle and, if this were not acceptable, it has to be said by whom, and argued on the Floor of the House. It is not a matter that can be argued conveniently, subject to what the noble Lord says, today.
The final aspect is that Amendment No. 26A was tabled, together with this opposition to the Question that Clause 17 stand part, before Amendment No. 27. It was not known until the third day of Grand Committee whether my proposal—that Clause 17 do not stand part—would be supported, because there was no need to legislate. This is the antithesis of the situation, which is embarrassing to a degree. It was not known that, if we could not strike out Clause 17, we would very strongly support Amendment No. 27, which I have dealt with before. Again, I find myself in a difficulty. It was not known until the third day of Committee that, because there was no need to legislate, Amendment No. 26A would be opposed without any consideration of the merits. It was not opposed by anyone, unfortunately, except by my noble friend. My opposition to the Question will be retabled on Report with the amendment about expulsion and exclusion
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Baroness Perry of Southwark: My noble friend has, as so often, succeeded in making me realise how very ill informed and un-legally expert I am. My concerns about Clause 17 are very simplistic and straightforward. I ask the indulgence of the Committee so that I can explain why I have very severe concerns about this clause.
During my long career, I have been a member of two trade unions, both of which I found of great benefit. They were totally unconcerned with any political views that I might have had at that time, which were pretty misty, but they provided me with very clear benefits. Trade union membership provides legal protection in times of difficulty and security of employment and tenure, for both of which I was immensely grateful. I exercised my trade union membership appropriately and in one case I was quite a leading member of those who called the further education lecturers out on strike when I was a further education lecturer in my very early days. I have a good, robust trade union background.
12.15 pm
The important thing is that membership of the trade union gave me benefits which are not inconsiderable. My first concern rests on that. Under Clause 17, any individual could be denied membership of a trade union and all the protection that it gives, simply on the basis of what political party she or he belongs to. That is not trivial, and it is totally wrong. I simply cannot see how a person’s politics can affect such membership, provided they are a member of a legally recognised political party, even if it holds views which most of us would find distasteful. I understand that there have been concerns about the BNP. I find its views totally obnoxious and distasteful. Nevertheless, it is a recognised political party and in a democracy we accept views that we disagree with strongly, as well as those with which we happen to feel comfortable. Again, that seems to me to be a basic principle of democracy.
My simple and non-legal view is that the right to belong to a trade union should not be affected by membership of any legally recognised political party. It would be a denial of two democratic rights—that of belonging to a trade union and that of belonging to a political party, both of which we cherish in this country. People have fought and shed blood over the right for both of those to be maintained. This clause seems to attack the very foundations on which they rest.
My second concern is practical. In my Civil Service days, I was always taught never to spoil a good argument with a bad one. I have given the Committee my good argument, but I shall now give the weaker one. I have thought about this concern in the dark watches of the night. If this clause goes through and some trade unions nail their colours to the mast with a specific set of political views, they could say to members of, for example, the Conservative Party, “I
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Let us suppose that in some of our great trade unions—for example, the TGWU or whatever—many of which I have dealt with over the years as an employer and have great respect for, political in-fighting begins to happen and alternatives are set up. To have groups saying, “We are the Conservative trade unionists in the Civil Service” or “We are the Liberal Democrat trade unionists in the teaching unions”, or whatever would be appalling. The greatness of our trade unions is that they embrace all political parties, and I shall rest on that argument.
Lord Lester of Herne Hill: I agree with everything that the noble Baroness, Lady Perry, has said. I hope, for a barrister, I shall be extraordinarily brief. First, I do not think that the noble Lord, Lord Campbell of Alloway, is right in saying that Clause 17 is outside the Long Title, which makes clear that the Bill is,
- “to make provision about the right of trade unions to expel or exclude members on the grounds of membership of a political party”.
Secondly, I do not think that it is right, as was suggested, that we could leave out Clause 17. If we just left it out, the Government would be failing in their obligation to give effect to the judgment of the European Court of Human Rights. Article 46 of the European convention expressly says that states have to abide by a judgment to which they are party. This is a judgment binding in international law and the Government have quite rightly introduced an amendment to give effect to that judgment.
Thirdly, I have already spoken at too much length at Second Reading and previously in Committee to the same effect as the noble Baroness, Lady Perry, on why there need to be adequate safeguards against abuse. The noble Lord, Lord Campbell, was kind enough to say that he would, if we had to bring the amendment back at Report, support something along the lines of the amendment to which we have already spoken—Amendment No. 27—which sought to introduce safeguards.
I have a bit of further news. I have had the great benefit, together with the noble Lord, Lord Morris of Handsworth, of meeting the Minister, Pat McFadden, on a second occasion this week, to discuss this matter with him and his expert advisers. The Government have not yet committed themselves to a particular solution, but he authorised me to say that they do not have a closed mind—in other words, that they are open-minded—and I believe that to be true.
One reason why we in my party are keen to build in safeguards rather than leaving it to the common law and litigation relying on common-law principles, as one used to when there was a closed shop, is that we believe that the BNP specialises in using litigation of a mischievous kind to further its political objectives. Therefore, it is not in the interests of the trade union movement or the wider society to have a situation in which there are no safeguards written into legislation
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The real question is of what kind of safeguards there are that would make it harder for the BNP to bring mischievous litigation in tribunals or courts, including the Strasbourg court. I hope that the Government will join the opposition parties in the search. Whatever the noble Lord, Lord Campbell of Alloway, may think, I have no doubt that the Conservative Party, when confronted with the actual problem, would press for safeguards in exactly the way in which we are pressing for them—, I would hope that members of the Labour Party and the trade unions would also be pressing for them—for the reasons stated so powerfully by the noble Lord, Lord Morris of Handsworth. I do not need to remind anyone in Committee that he is a special witness to what is needed, having been an extremely distinguished and powerful general-secretary of the Transport and General Workers Union.
The noble Lord, Lord Morris, and I believe that it is not sensible for the TUC or affiliated unions to be in the position of saying that they do not want safeguards written in but want to leave it to the Queen’s courts to solve any problem. That is not a sensible position. Leaving aside the wording of the amendment, I suggest for the benefit of advisers who are present that what is needed is something along these lines: at the end of subsection (4A) of the 1992 Act, one could say that the measure “does not include membership or former membership of a political party where the values and ideals of the party are incompatible with a rule or objective of the union; the decision to exclude or expel was taken fairly and in accordance with the union’s rules and written procedures; and the consequences of exclusion or expulsion would not result in exceptional hardship”. Those words are my attempt to give effect to what I think is the judgment of the court. If those safeguards were written in and the union were to pursue them in practice—
Lord Campbell of Alloway: Can I respectfully ask a question? I do not indulge in this sort of thing; it is a genuine question. The noble Lord has had meetings with the Minister; we have not. All I want to know is whether he is telling us what the Minister told him or what he told the Minister, and where we actually stand here, because he is a government adviser. I do not know whether he is speaking as a government adviser. Can he clear that up for me?
Lord Lester of Herne Hill: I am certainly not a government adviser on what we are discussing today. I am a government adviser only on some aspects of constitutional reform, of which this does not form part. I went to see the Minister with the noble Lord, Lord Morris, as two Back-Benchers from our respective parties seeking to achieve a friendly and sensible compromise in everyone’s interest. It does not seem sensible to have a great battle, leading perhaps even to ping-pong between the two Houses, on issues that
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Lord Borrie: I seek elucidation from the noble Lord, Lord Lester. One of the safeguards to which he referred was that of avoiding hardship. I have not studied the other safeguards because I do not have them in front of me but it seems to me that he is putting this forward to achieve clarity so as to avoid litigation, particularly mischievous litigation. However, “hardship” could amount to anything.
Lord Lester of Herne Hill: The noble Lord, Lord Borrie, raises an important point, which I shall explain. I used the words “exceptional hardship”, not “hardship”. I do not suggest that we spend a lot of time analysing the ASLEF judgment today because it would not be sensible even for the lawyer Members to do that. However, if one reads it, one finds that the case is very much decided having regard to the fact that the particular individual did not suffer exceptional hardship. However, I am concerned that in a future case a BNP member may come along and say, “I have suffered exceptional hardship but it is not covered by any safeguard in the legislation”. If we leave Clause 17 as it stands, there is nothing to stop a case being brought on those lines. Therefore, it seems to me that we need to spell out the minimum we can in the Bill to try to avoid such litigation and to protect the unions—putting their house firmly in order in line with what Parliament wishes—from it as far as possible.
One could, of course, delete “exceptional hardship” altogether, but the danger of doing that is the one I have just described. That is the reason for putting it in. I originally put in a lot more language but was persuaded that one should put in as little as possible of a subjective and controversial kind. But I fully understand the question that the noble Lord, Lord Borrie, put to me. I hope that I have given my answer, whether he is satisfied with it or not.
12.30 pm
Lord Wedderburn of Charlton: I am in great agreement with the noble Lord, Lord Lester, with one exception, which I shall explain briefly. First, some noble Lords seem to omit the central question that it is the obligation of this Parliament to change the legislation to enact the principle in the case of ASLEF in the human rights court. Some noble Lords appear to want to ignore that obligation but I am very glad that most Members are quite clear that we cannot do so.
Secondly, Clause 17—if anyone has not read the ASLEF judgment, I have a copy here—as the government paper explained, is a straightforward attempt to enact the sensible principle of the judgment in the ASLEF case.
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Thirdly, what we are about is finding a formula that will understandably satisfy those who think that there might be a case of something—perhaps exceptional hardship or some words of that sort—to mitigate the clause. It is quite ridiculous to try to draft that in Committee. We all know that the Government are thinking about it hard, and we all know that something will come back to us on Report. No doubt, lots of people will meet lots of other people and talk to them on the telephone, and that is what is going to happen. It is quite absurd to try to draft it today. I suggest that this proposal should be withdrawn and outside this Room, on some other occasion, we can all get on with finding a formula that achieves consensus in the House.
Lord Henley: My noble friend Lord Campbell of Alloway sought some clarification, particularly from me on the position of the Official Opposition. As my noble friend made clear, I have asserted that it would be possible for us not to do anything. I am now strongly advised by both the noble Lords, Lord Lester of Herne Hill and Lord Wedderburn, that we do have to do something. The noble Lord, Lord Lester, quoted the appropriate article of the convention. If that is the case, and we have to do something, I say to my noble friend that it would obviously not be possible to simply strike out Clause 17 as he suggested. I originally said that we would be sympathetic to that. Failing that, we would then want to go down another route, in effect looking at what the Government offered in option A and option B and possibly heading towards option B which, in my understanding, is something closer to what the noble Lord, Lord Lester of Herne Hill, is pursuing. I make it clear that we seek a tighter reworking of Clause 17. We do not believe that we should go beyond what the judgment asked for.
I offer some further clarification to the Government by saying that it is quite clear that there will be many of us on all sides of the House who will be seeking some further reworking of Clause 17 on Report. Therefore, it probably behoves them to come up with something as well to see whether they can in due course meet us somewhere nearer to where I, my noble friend and the noble Lord, Lord Lester, are.
Lord Brett: I do not think I have heard so many warm words about trade unionists and trade unions from Conservative politicians, either in this House or another House, than I have in the past few days. I think that is something of a blue herring rather than a red herring, because I have twice heard references to people having Conservative Party association or views being in danger of some form of expulsion from a trade union, which is something that I have never personally experienced.
I had the privilege of being the chairman of a Labour-affiliated trade union, of which a very distinguished Secretary of State under the noble Baroness, Lady Thatcher, was a member. He came to meetings. No one ever suggested that he should not or that his views were not compatible with membership of what is now part of the GMB. He paid the political levy, but I suspect that was a mistake. The important
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