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The amendment also inserts new subsections (4C) to (4H) into Section 174 of the 1992 Act. Together these new subsections set three conditions which a trade union must meet if it wishes to expel or exclude a person on the grounds of that person’s membership of a political party. These three conditions in effect provide three types of safeguard when viewed from the standpoint of the individual concerned. The first safeguard is set out in new subsections (4C), (4D) and (4E). It specifies that the membership or former membership of a political party must be contrary to a rule or objective of the trade union. A union’s rules are well known and easily accessible—indeed, there is a statutory duty for a union to supply a copy of its rules to any person whether or not they are a union member—but union objectives are usually different in character. There may be many of them, they may change more frequently over time and they may be found in many different documents, and individuals cannot be expected to be able to access or understand them all. The amendment therefore provides, in new subsections (4D) and (4E), that it must be reasonably practicable for a person to ascertain the objectives in question. New subsection (4D) sets provisions in the case where a person is expelled or excluded for their current party membership. New subsection (4E) sets the corresponding provisions where the person is excluded or expelled for their former membership.
We recognise that a person’s ability to ascertain an objective depends on whether they are a member of the trade union at the relevant time. Obviously, trade union members should be able to know more, so we set different tests in relation to each group. For those who are or were trade union members at the relevant time, the test is whether it is reasonably practicable for a member of the union concerned to ascertain the objective in question. For those who are not or were not trade union members at the relevant time, the corresponding test is whether a person working in the same trade, industry or profession as the expelled or excluded individual could reasonably ascertain the objective.
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Those provisions are deliberately based on the current wording of Section 176(1D) of the 1992 Act. We feel that consistent wording would assist union understanding and help unions comply with the law. However, we have decided to use a different comparator test for non-union members from that which is currently found in subsection (1D). To achieve consistency, the amendment therefore realigns the test in Section 176(1D).
The second safeguard is that a union’s decision to exclude or expel must be taken fairly and in accordance with its own rules. In other words, this condition relates to procedural fairness, a matter that particularly concerns the noble Lord, Lord Campbell of Alloway, as well as other noble Lords. The relevant provisions are set out in subsections (4F), (4G)(a) and (4G)(b). Subsection (4H) specifies what is meant by an unfairly taken decision. These mirror the basic tests of procedural fairness that the courts apply in common law, the significance of which has been stressed in the House on several occasions. We have not set wider or more general tests of fairness in order to attempt to avoid overcomplicating the law and to avoid giving significant scope for mischievous or vexatious litigants to challenge union decisions.
The third safeguard is found in new subsection (4G)(c). It provides that the decision to expel or exclude on these grounds must not lead to a loss of livelihood or other exceptional hardship because of the resultant loss of union membership or a failure to obtain union membership. “Exceptional hardship” is the term used in the ASLEF judgment and in other ECHR cases. It will mostly occur where a person loses his or her job, but it may conceivably occur in some other limited cases where an individual suffers another substantial detriment. We do not believe that exceptional hardship is a real threat to most workers because other laws in this country outlaw the closed shop, but we cannot say for certain that such substantial hardship will never occur in any circumstances. Hence, this extra safeguard is included.
Amendments Nos. 9 and 10 flow from Amendments Nos. 3 and 8. They make consequential changes to Clause 21 and the repeals schedule respectively. Clause 18, as it now is, has aroused strong opinions and passions. At the outset we had hoped to simplify the law in this area through deregulation. We strongly advocated that approach in Grand Committee and elsewhere. However, our arguments have clearly not found favour around the House. Recognising the will of the House, we have therefore come forward with this alternative approach in, as I have said, a spirit of compromise. I thank all those who have taken part in these debates at all stages of the Bill for devoting their time to assisting us in identifying the alternative. I am particularly delighted that the noble Lord, Lord Lester, who cannot be with us today, has added his name to the government amendments.
We have been mindful of the views of the Joint Committee on Human Rights on this issue, and our amendment reflects all three safeguards that it advocated. I cannot claim that our amendments will necessarily simplify the law—we are, after all, adding six new subsections to Section 174—but we have tried to draft the provisions in a way that goes with the
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It should be remembered that the net effect of all these changes is to provide greater autonomy for trade unions provided that they act responsibly. They will enjoy greater freedom than they have now to expel or exclude persons whose political party membership is in opposition to the union’s political beliefs. We are therefore convinced that our approach is consistent with the ECHR judgment. I beg to move.
Lord Henley moved, as an amendment to Amendment No. 3, Amendment No. 4:
The noble Lord said: My Lords, I shall speak also to Amendments Nos. 5, 6 and 7. I thank the Minister for writing to me on 22 May about Clause 18, on which he has just spoken. Sadly, I received the letter only when I arrived in the Lords this morning, because, for once, the excellent delivery systems of this House did not manage to forward it to my home in the country. I am grateful for the Minister’s explanation in that letter of what the Government were up to. I would have responded to him last week and said that I was in effect satisfied with what the Government were proposing. I would then have given him the assurance that, although I wanted still to table these amendments, I did not intend to divide the House on them. I can now give him that assurance.
As the Minister said, the Government have in a spirit of compromise gone a considerable distance in trying to come up with a deal that might satisfy us, the Liberal Democrat Benches, the noble Lord, Lord Morris and others who have expressed concern about the clause both in Committee and on Report. The Government have tried to find a compromise that is nearer to, as the Minister put it, Option B than to the original Option A which the Government seemed to favour in their consultation process. For that reason, we will accept it, although we would like to have gone a little further, which is why we have put down the amendments. They are similar to those which we tabled on Report. We might even have discussed something similar in Committee.
The amendments highlight our concern, first, 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 former membership being held against a trade union member. That smacks of retrospective punishment, even if the resignation from an objectionable political party had been recent. Such a resignation would show that membership of the trade union was more important to the person concerned than membership of the political party. Who would decide whether a member’s resignation was fair?
That was our concern. I appreciate that the Government have gone a considerable distance since we discussed the matter on Report, for which I am grateful. For that reason, I shall certainly not press our amendments. I look forward to the House accepting the Government’s amendment. I beg to move.
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Lord Campbell of Alloway: My Lords, having withdrawn Amendments Nos. 1 and 2, as ordained by the Public Bill Office, I was advised this morning by that office and others that I may speak to Amendment No. 3 with Amendments Nos. 8 to 10, which are supported, subject to a caveat, so that I am not speaking out of order. The caveat is that the intendment of Amendments Nos. 1 and 2 should be taken into account before these measures are implemented and that before these measures are implemented the reservations of the TUC should be recognised. I have referred to them in the past; this is a short speech and I shall not repeat myself, but they will be spoken about again today by the noble Baroness, Lady Turner of Camden.
Amendment No. 3 first came to my knowledge on a chance visit on 29 May to tidy up my desk. As I passed the Public Bill Office, I was handed the amendment. I called up the Department of Trade and Industry to inquire where the Minister was, as I wanted to talk to him about an arrangement that we had made. I was informed that he was in Mexico and had been there for quite some time and that I could not speak to him.
The scenario has changed. Having opposed, with the Government, the Lib Dem amendment to Clause 18 on Report and—because I am not a member of the Liberal Democrat Party—having no knowledge of the negotiations that resulted eventually in Amendment No. 3, this came as a great surprise. Amendments Nos. 1 and 2 had been withdrawn on Report on the assurance, made between myself and the Minister, that there would be further consideration and consultation, not as to the substance but as to the drafting, before Third Reading. Of course, I hoped that the noble Lord, Lord Jones, was a man of great honour and that if you made a deal with him he was the sort of man who would never rat on you. I rang up to ask him this morning if he could come and deal with this matter today, and deal with the arrangement that we made—because the noble Lord, Lord Bach, knows nothing about it. Very few other people know anything about it, although there is a reference to it at col. 1304 of the Official Report of 19 May. But I was told that the noble Lord, Lord Jones, could not come because he is in Azerbaijan. I do not even know where that is, but I am sure that it is a long way away. So there it is—noble Lords will have to take it from me, pending the noble Lord’s return to read the report. This morning I informed the Public Bill Office of that arrangement. The only other person who knew about it was my Chief Whip. I informed my Chief Whip. If I make an arrangement I inform my Chief Whip—she knew.
I said to the civil servant in the department on 29th May that there had been no consultation and no communication with the Minister. The civil servant arranged with two other civil servants to meet me on 30 May in the Royal Gallery. What was said was confidential and cannot be repeated. The Public Bill Office did not know then that there had been this arrangement and had sent the e-mail which ordained withdrawal of these amendments, which today, if they
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The scenario turned itself upside down in the Recess. I opened my e-mail. I am not very good with my e-mail. I leave it alone at weekends because I get very bored with it. Yesterday, at about six o'clock, I opened it up and then I knew that I could not move the amendments. There was then no time to draft an amendment or to do anything. I had a word, by chance, with the noble Baroness, Lady Turner. She did not realise until very late—I cannot remember why—that she could not put down an amendment. So one has been rushed towards the barrier. I am criticising no one because criticism is idle. I am just saying that we have been rushed towards the barrier, and here we are.
The grounds on which I would seek compatibility today if I had those amendments are strictly relevant for the consideration of government. I have tried to put them in a condensed form. First, these provisions as to conduct are ever subservient to the overarching authority of the ordained procedures as reflected in Amendments Nos. 1 and 2, to which there is no reference either in Amendment No. 3 or in Clause 18.
Secondly, the proper balance on adjudication is not just between, as it is put, the trades unions on one side, the rule book, the objectives, and the interests of those seeking membership or wanting to remain in membership, where notice is given and the other requirements of our tenets of natural justice are observed. That is not exactly the balance that must be struck, which is as stated in Amendments Nos. 1 and 2. No one has challenged that as being wrong at any stage; it is not wrong, it is entirely right. The balance must be struck between the competing convention rights on the facts and circumstances of each case.
The third issue—there is only one more after this and I will then sit down—is that without Amendments Nos. 1 and 2, or having regard to their intendment, there is no guidance or signpost to the trade union on adjudication or the employment tribunal on appeal. There is no guidance that the implementation of these provisions as to conduct must be in accordance with the mandatory effect of the ordained procedures.
The last matter affects the amendment of my noble friend Lord Henley, in that the interpretation of domestic law that distorts that balance would not be acceptable to the Strasbourg court. In other words, one must make it plain that the adjudication must be under the overarching authority of the Strasbourg court. This matter arose on Report. Objection was then made to this amendment on grounds totally wide of the intendment as expressed in the ordained procedures. You cannot amend domestic law to suit your own purpose; you must have implementation within the overarching authority. It is to be hoped that the Government heed the caveat and so reduce the risk of further application to the court. The door has been left ajar under these amendments.
There was no time to put down our amendments. I am not saying that it was the fault of the Government, but it was not our fault. If, as I have said and shall not repeat again, the Government had
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Baroness Turner of Camden: My Lords, the noble Lord, Lord Campbell of Alloway, has referred to TUC reservations. There are indeed TUC reservations about the amendment, and I would not like this debate to pass without your Lordships realising what they are.
I had a letter from the TUC during the recess. The TUC believes that the proposed government amendment is unnecessary, would place unjustified restrictions on trade unions’ ability to determine their membership and is likely to act as an invitation to litigation. There are serious reservations with regard to the proposed amendment. First, under proposed new subsection (4C) it will be for the courts to determine whether membership of a political party is contrary to a rule or objective of a union. This could provide opportunities for the BNP or other similar bodies to grandstand courts and tribunals and to argue that they are not racist or fascist organisations. This issue is particularly likely to arise in the case of unions that oppose racism as part of their rules. The provision could also require unions to list in the rule books the names of any relevant political parties. Given the ease with which far-right parties can change their names, this is likely to cause major difficulties and to create opportunities for dissidents to argue that membership of a political party is not contrary to the rules of the union.
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Secondly, the new procedural arrangements introduced in the proposed new subsection (4G)(a) and (b) will create a new statutory remedy for individuals for a breach of contract even though an individual can already complain to the certification officer and/or the High Court on the ground of expulsion in breach of the union’s rules. It is not clear how such double regulation complies with the Government’s better regulation standards.
Thirdly, there are serious concerns that under proposed new subsection (4G)(c) one of the conditions that must be satisfied before a union can exclude or expel on grounds of party political membership is that the individual would not,
- “lose his livelihood or suffer other exceptional hardship by reason of not being, or ceasing to be, a member of the union”.
In the TUC’s view this condition is in no way required by the ruling of the European Court of Human Rights and could represent an unjustified restriction on trade unions’ rights to freedom of association enshrined in Article 11 of the European Convention.
The expression “exceptional hardship” is legally uncertain and furthermore no evidence has been provided of any abuse by trade unions to justify this provision or to establish why trade unions should be thus regulated. In the absence of closed-shop arrangements trade unions have no control over individuals’ access to employment. However, the provision would potentially make a union liable for decisions taken by an employer to dismiss an individual—decisions which are beyond
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Fourthly, and perhaps most worryingly—this point was made to me by Thompsons, the legal firm which acts for a number of unions—if the amendment had been in place in the Lee case—that is, the ASLEF case—it is likely that Mr Lee could have successfully challenged the exclusion from the union even though subsequently ASLEF went on to win before the European Court. It is difficult to know how the amendment therefore gives proper effect to that court’s ruling.
Those are the TUC’s views on the amendment to Clause 18. It is only right and proper that noble Lords should know what they are before they reach a decision. I realise that the amendment has wide support in this House but it seems to me that if it becomes law we may very well find ourselves once again at the Strasbourg court, and nobody wants that to happen. There is considerable concern within the trade union movement, as expressed by the TUC, that the wording now before the House will not make things easier but rather a great deal worse, a great deal more complicated and a great deal more difficult for unions to comply with in situations such as the ASLEF case. That was not the original intention. The Government introduced the provision in the Bill because they were concerned to put into operation what was apparently required by the original decision in the ASLEF case before the ECHR.
Therefore, I am not happy about the amendment. It will undoubtedly be endorsed by the House, in which case it will be up to the TUC to take it further by whatever means are available to it, including perhaps lobbying Members in the other House when the matter gets to the Commons.
Lord Morris of Handsworth: My Lords, I have no desire to unduly delay the House, but I wish to make one or two comments as briefly as they can be made. First, I thank the Minister for his contribution and work in seeking to secure broad support for the amendments, particularly Amendment No. 3, and—more than that—to have a change of strategic direction in respect of option B as opposed to option A. Also, I mention the work done by my noble friend Lord Lester. Although he is absent this afternoon, he attached his name to the amendment. The House will recall his contribution to the debate.
For my part, I think that the amendment has delivered on the three key principles which were a necessary precondition for supporting the Bill. The first was to
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The second principle of great importance was the maintenance and preservation of free, unfettered and democratic trade unions having the ability to govern, police and implement their own rules. I see nothing in the Bill that will undermine that fundamental principle. I know of the TUC’s concern, but I equally know of the briefing sent out by one or two solicitors. If one were unkind, one would begin to ask whose interests were served in the pursuance of suggesting that free and democratic trade unions would be undermined as a result of the Bill.
For me, the most fundamental principle in the debate, which the Bill has preserved, is the right of members of trade unions to natural justice in circumstances of either expulsion or exclusion from their trade union. No one in this House has argued against the principles of natural justice. What we have argued is that the Government’s starting point was to seek to provide mere remedies after the event. This amendment places a right and proper duty on the party that will be taking the principal decision to exclude or expel to comply with the principles of natural justice through procedures and ordinary rights of appeal enshrined in union rules. This Bill does not and will not write the union rules. Unions as free democratic organisations will have an opportunity to write those rules themselves. If members feel a sense of grievance about the way in which the rules are applied, they will have an opportunity to seek redress elsewhere.
Three key principles have been met: Britain will be able to comply with its statutory obligations, trade unions will have freedom and democratic rights in respect of their rule books, while the ability to discipline their members has been preserved, and members’ rights to natural justice will be safeguarded. On that basis, I support Amendment No. 3 in the name of my noble friend Lord Jones and I wish the Bill well on its way.
Lord Campbell of Alloway: My Lords, the noble Lord is an experienced trade union leader and I have listened with great attention to everything that he said. Does he agree with what his noble friend Lady Turner of Camden said about the attitude and worries of the TUC?
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