Employment Bill [HL]

I suspect that the noble Lord, Lord Campbell of Alloway, has tabled this amendment in order to stimulate the general debate about Clause 17 and the European judgment that underpins it, to which the noble Lord, Lord Henley, has just referred. I shall therefore start the proceedings on behalf of the Government by discussing the rationale and the principles behind the whole of Clause 17. I remind noble Lords that we considered these issues recently during the passage of the Employment Relations Bill in 2004. As a result, the House agreed significant amendments to Sections 174 and 176 of the Trade Union and Labour Relations (Consolidation) Act 1992. Those changes made it clear that it was lawful for trades unions to exclude or expel individuals on the grounds of their political party activities. At that time, we thought we had struck the right balance between the relevant rights within the European Convention on Human Rights. We were wrong in that assessment, as the judgment by the European Court of Human Rights in the ASLEF v UK case has since shown. In essence, the court believes that British unions should be freer than now to exclude and expel on the grounds not of political party activity, which we thought we had covered, but of political party membership alone. The amendment refers to the need to balance conflicting rights. That, of course, is exactly what the European Court of Human Rights was asked to determine. It unequivocally stated that our law currently struck the wrong balance between the rights of a union and those of a member expelled on grounds of membership of the BNP. The court held that greater weight should be accorded to the rights of the union and its members to determine their own admission rules. As we know, this judgment arose from the decision by ASLEF to expel Mr Lee, a BNP member. In examining the human rights issues in this case, the European Court paid due consideration to, "““the importance of safeguarding … individual rights””." However, in paragraph 50 of the judgment, the court stated that it was, "““not persuaded … that the measure of expulsion impinged in any significant way on Mr Lee’s exercise of freedom of expression or his lawful political activities. Nor is it apparent that Mr Lee suffered any particular detriment, save loss of membership itself in the union””." In this country, employment is not contingent on union membership. Also, collective agreements cover both union and non-union members alike, so the possession of a union card does not affect pay or other terms and conditions of employment in the UK. The European judgment is clear: there are no ifs or buts. We are therefore obliged to make the consequential changes to our law, and that is what Clause 17 seeks to do. Further, the amendment would create legal uncertainty. It is not clear who should strike the balance to which it refers. Is it the union or the courts or is it both? The amendment is not linked to any other provision in trade union law, so it is far from clear what the enforcement mechanism or the sanctions are. The amendment refers to ““expulsion”” alone; it therefore does not deal with the issue of ““exclusion””. In addition, the amendment would change the way that our law interacts with the European Convention on Human Rights. At the moment, the Human Rights Act 1998 provides for the incorporation of the European convention into our legal framework. It would represent a major departure to introduce this additional reference to the European convention—and just one of the rights under that convention—within employment law. I see no case for doing so. Before I close, perhaps I may deal with two specific points raised by the noble Lord, Lord Campbell of Alloway. First, he asked why the trade union movement opposed ASLEF’s application to the European Court of Human Rights. Factually, it did not oppose it. In fact, some unions gave financial support to ASLEF in making the complaint to the European court. Secondly, the noble Lord asked what the other option was on which we consulted and why we rejected it. The other option was to permit exclusion or expulsion for membership of a political party, provided that such membership was incompatible with the union rules or an objective of the union and the union’s decision to expel or exclude was taken in accordance with the proper procedure of the union’s rules. The Government rejected that option because it would needlessly complicate the law and would lead to greater uncertainty. Also the option contained a redundant element because the acts of a trade union are always open to challenge if they conflict with the union’s own rules. Given the absolute lack of evidence for this threat of abuse, this would be a clear instance of unnecessary over-regulation. The option may also produce some unfortunate side-effects, including the opportunity for vexatious litigation by politically motivated extremists. I am perfectly aware that this is just the beginning of a detailed debate on the whole of Clause 17, with its many aspects. At this point I ask the noble Lord, Lord Campbell of Alloway, to withdraw his amendment. I respect where he is taking us and I know that this matter will be discussed for some time to come.