Employment Bill [HL]

moved Amendment No. 26A: 26A: Before Clause 17, insert the following new Clause— ““Expulsion of membership of a trade union On expulsion from membership of a trade union a proper balance shall be struck between rights of association of the trade union granted under the European Convention on Human Rights and those of the member on the facts and circumstances of the case.”” The noble Lord said: I am afraid that I do not have a prepared speech for your Lordships; I have only some notes. The basic position is that the amendment safeguards the interests of the rank and file trades union membership as concerns expulsion and exclusion by reflecting in our domestic law the procedure as ordained by the Strasbourg court in the case of ASLEF on implementation of Article 11 of the convention. The amendment ensures compatibility with our domestic law. ASLEF was a judge-made decision on procedure, which was, and is, opposed by the trade union movement. As will become apparent, the trade union movement wishes to retain procedures other than those laid down in ASLEF. Therefore, the question of compatibility with this aspect—it is now an established aspect of administrative law—is crucial. Apart from reflecting in our domestic law, in simple English, the essence of the court’s reasoning in ASLEF to afford this compatibility with Article 11, this matter is relevant to the questions of why Clause 17 was drafted under option A; why it was redrafted under option B; and whether in due course—but not to be referred to at any length in this speech—Clause 17 should stand part of the Bill. The amendment ordains a simple, straightforward, flexible approach to the proportionate balance that has to be struck. This lies at the root of the decision in ASLEF. It is the balance between the freedoms of the trade union and those of the individual member in relation to expulsion and exclusion, which must always be decided on the facts and circumstances of each case. Therefore it is a wholly flexible disposition that was ordained by the court at Strasbourg. The court also decided that Section 174 of the 1992 Act and related provisions— the details of which I shall not go into—were not compatible with the convention. The object of this amendment is to ensure compatibility and, by affording compatibility, to enable our tribunals and domestic courts to take account of the decision in ASLEF in the context of expulsion and exclusion. This would put a stop on the need to make another application to the Strasbourg court. The previous application was necessary only because our own domestic law was not in accordance with its views. Therefore, when we have compatibility, and if the amendment is accepted, the tribunals and the courts will be able to apply the law, which is now part of our law, without any need to make an application to the court at Strasbourg. It is not known exactly why the trade union movement opposed the application of ASLEF, which is a small, independent, craft union. It made an application to the court to set aside the decision of an employment tribunal to expel a member on the primary ground that his membership of the British National Party, a political party, was unlawful and that his conduct as a member, which I need not go into—he dressed up as a priest and made some anti-Islamic remarks—brought the union into disrepute. An impression could be gathered on the question of why the trade union movement opposed the application of a small, independent, craft union. We come back to where I started. This is in the interests of the rank and file membership of the unions, so why did the trade union movement oppose it? The impression is gained from the Library Notes, and reflected in Amendment No. 27, which we will look at later on, that it could have been to seek judicial approval for collective domination of authority to expel, under extant trade union procedures, for breach of the rulebook and to protect values, ideals and objectives so that they remain compatible with trade union policy. I cannot think of any other reason why the trade union movement would ask the Government to do this. You only have to look at the parties to the proceedings: ASLEF, a small craft union, applies and is opposed by the Government and a series of the big unions. I cannot think of a reason other than the one hinted at in the Library Notes and the one that I have given. If there is another reason, I should be interested to hear what it was or is now. This is a terribly important point. I will not go into the details but, as some Members of the Committee know, for many years I have been involved in these matters and in the rights of the rank and file trade union movement. In a way, this returns again in a wholly different context, but it is there. I beg to move.