Employment Bill [HL]

My Lords, it is a great pleasure to follow the noble Lord, Lord Wedderburn, who tried to teach me the principles of contract law 50 years ago. I agree with much of what he said, and I wish that there were time for me to comment on what is to be done about unequal pay for women and what is to be done about tribunals and equality tribunals. But there is not time, because I need to concentrate on one matter only; Clause 17. Clause 17 gives extremely broad powers to trade unions to exclude or expel someone for belonging to a political party, as has been explained. It contains no safeguards against the abuse of those powers. I am a strong supporter of the trade union movement, and looking across the House I am reminded that it has been a great pleasure to work with old friends and colleagues, sometimes representing their trade unions, in important cases. I believe that it is in the best interests of trade unions to accept the need for statutory safeguards against the misuse of their powers. With respect to the Minister, trade unions are not like other voluntary bodies, which is why they have been subject to legislative safeguards. The Strasbourg court referred in paragraph 50 of the ASLEF judgment to membership of a trade union as being a fundamental safeguard for workers against employer abuse. That is why membership of a trade union is a precious civil right. Section 174 of the Trade Union and Labour Relations (Consolidation) Act 1992 gives a right for individuals not to be excluded or expelled from membership of a trade union, unless the exclusion or expulsion is for a reason specified by the section. Section 174(2) makes it unlawful for a trade union to expel or exclude a person on the sole or main ground of ““protected conduct”” by that person. ““Protected conduct”” is defined as membership or former membership of a political party. The 1992 Act provides remedies where the employment tribunal finds that a trade union has breached this right. Clause 17 amends the 1992 Act in response to the judgment of the Strasbourg court in the ASLEF case. It removes all reference to ““protected conduct””. The effect would be to enable unions to apply membership rules which prohibit individuals who belong or have belonged to a particular political party from membership of the union and access to the benefits of membership. The Government’s consultation document published last May, to which I pay tribute, suggested two options for amending the 1992 Act to bring the law into line with the Strasbourg judgment. Option A was to amend Section 174 to ensure that there was no explicit reference to a special category of conduct relating to political party membership or activities. Where such political party membership or activities were ““unacceptable”” to the trade union, it would be lawful for the union to expel or exclude on those grounds. The consultation document correctly noted that option A would provide unions with much greater autonomy in deciding their membership. It noted: "““However, there would be no special safeguards against possible abuse””." It also observed that such safeguards might not be necessary because, "““there was no evidence that unions would make use of their greater freedom by expelling members or activists of mainstream political parties””." I am not sure that I like that reference to ““mainstream political parties””, because parties outside the mainstream have rights as well. Option B in the Government’s consultation paper was narrower and would contain safeguards against abuse. It would mean that the special category of conduct relating to political party membership and activities would be retained, but that the right not to be excluded or expelled for such conduct would be significantly amended. Under the Government’s proposal, the amendment would refer to the limited conditions under which it would remain unlawful for the union to exclude or expel an individual because of his or her political party membership or activities. Those conditions would specify that the union’s decision would be unlawful unless the political party membership or activity concerned was incompatible with a rule or objective of the union, and the decision to exclude or expel was taken in accordance with the union’s rules or established procedures. The Government’s consultation document explained that option B, "““would specify particular safeguards against potential abuse. Those safeguards are based on the reasoning of the Court which noted the need for the trade union to avoid arbitrary behaviour and to act transparently in accordance with its rules. Many union rule books now refer to racist, xenophobic or extremist political behaviour as unacceptable to the union. So, little adaptation by those trade unions would be needed in order to comply with this Option. Where a trade union was required to amend its rule book, then members and potential members should gain because they would be properly informed of the potential consequences of their political actions. Option B might, however, create grey areas and give scope for legal action to arise about the precise meaning of a union’s rules or objectives””." I make no apology for placing this before the House because it is important to understand that the Government have a choice. Thirty-three organisations responded to the consultation, 26 of which were trade unions. Not surprisingly, on the principle that the Home Office enjoys the fact that that power is delightful and absolute power absolutely delightful, the great majority of the unions and their lawyers preferred option A, and argued for unrestricted union autonomy and power. Like the Government, they appeared to believe that blanket powers given under option A would not leave grey areas or give scope for legal action to arise. I believe that that view is mistaken, as I believe that option B would be more likely to secure compatibility with the convention rights and avoid litigation. It is fair to add that those independent of trade union interests prefer the safeguards in option B or, in the case of the CRE, would support option A only if there were safeguards. Article 11 of the European convention guarantees the right of everyone to, "““freedom of association with others, including the right to form and to join trade unions for the protection of his interests””." No restrictions may be placed on those rights except in accordance with legal certainty and proportionality. Before the Strasbourg Court, the Government referred to the countervailing rights of trade union members and prospective members to freedom of expression and freedom of association, which they rightly pointed out would be engaged by expulsion from a trade union—under rights which are at the very foundation of a democratic society. The Government also, rightly, emphasised, "““the special status of trade unions which set them apart from other voluntary associations, pointing out that they play a potentially very important role in the working lives of individuals and exercise a direct influence over matters such as pay, holidays and other terms and conditions of employment””." The European Court noted the importance of the right to form trade unions, that, "““Prima facie trade unions enjoy the freedom to set up their own rules concerning conditions of membership””," and that as an, "““employee or worker should be free to join, or not to join a trade union without being sanctioned or subject to disincentives, so should the trade union be equally free to choose its members””." However, the judgment contained this important statement of principle, worthy of John Stuart Mill in On Liberty. In paragraph 43, the court said that, "““pluralism, tolerance and broadmindedness are hallmarks of a ‘democratic society’. Although individual interests must on occasion be subordinated to those of a group, democracy does not simply mean that the views of a majority must always prevail: a balance must be achieved which ensures the fair and proper treatment of minorities and avoids any abuse of a dominant position. For the individual right to join a trade union to be effective, the State must nonetheless protect the individual against any abuse of a dominant position by trade unions””." It went on to explain how that abuse might arise. Clause 17 as it stands contains no safeguards against abuse; it does not require unions to strike a fair balance between the competing rights and freedoms. The remedy for the certification officer, for reasons that I can explain, does not deal with the problem—and in any event, the officer can deal with complaints only from members or former members, not with cases of arbitrary exclusion. What is quite serious is that a legal challenge could be made at common law not only for breach of the rules but also challenging the unreasonable or arbitrary nature of the rules. That is what used to happen a generation ago, in the bad old days when I was young, when the courts recognised, in Lord Denning’s words, that the rules of a trade union were more than a contract and that they were, a ““legislative code”” that should be controlled, "““by the courts just as much as a code laid down by Parliament””." What this means is that the courts would have to fill the vacuum created by Clause 17 by striking down or restricting a union rule which operates in breach of the individual’s convention rights to freedom of association and expression. They would do so, I have no doubt, in applying the common law, or, in some cases, when the union performs a statutory duty, under the Human Rights Act. Surely that is much less satisfactory than including safeguards in the Bill itself, as contemplated by the Government in option B. Clause 17 could easily be amended to include safeguards that make the union’s decision unlawful unless the political party membership or activity concerned was incompatible with a rule or objective of the union, and the decision to exclude or expel was taken in accordance with the union’s rules or established procedures. Option B would ensure that the principle of proportionality and the fair balance test would have to be applied, and would thereby reduce the risk of further breaches of the convention. I very much hope that the Minister will be able to indicate in his reply that the Government remain ready to consider option B and have not closed the door by choosing option A in the Bill.