Employment Bill [HL]

Perhaps I may answer the question, especially as it comes from a noble Lord who tried to teach me the law of contract and uses words such as ““ratio”” in relation to the Strasbourg court. The one thing that I do a lot of is argue in front of that court and read its judgments. I assure the noble Lord that we are not engaged in looking for the ratio in the way that he is doing and as one would do for traditional English judgments. If one looks at the whole reasoning process, one will find what I have just said, which is that the court, as its ratio—if one wants to put it in that narrow way—decided that, as the individual did not suffer any detriment other than loss of membership and there was no evidence of arbitrary or capricious conduct of a wider kind, on the facts of that case the legislation was too broad. In answer to the comment of the noble Lord, Lord Wedderburn, about my choosing words, the Government have correctly interpreted the judgments—it is not just me who has done so. In option B, which is what my amendment tries to do, they say: "““The special category of conduct relating to political party membership and activities … should be retained but the rights not to be excluded or expelled for such conduct should be significantly amended. The amendment would refer””—" as mine does— "““to the limited conditions under which it would remain unlawful for the trade union to exclude or expel an individual on the grounds of their 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 expel or exclude was taken in accordance with union rules or established procedures””." That is the first limb of what I have done in the amendment. However, the Government have not dealt with oppression and detriment, which is what I have sought to do narrowly. The weakness of the amendment is that it does not prohibit the employer acting arbitrarily as well, for which it could be criticised. However, it deals with the vice of putting pressure on the employer behind the scenes. That is what I have sought to do. What I do not want to do is to leave the clause open to oppositionist, aggressive, anti-union interpretation, which is not the object; the object is to deal with this matter and avoid litigation. I am convinced that if one leaves the clause as the Government have done, the BNP will exploit it. It will say, ““This does not go far enough””; it will take another case; it will go through the English courts; it will go back to Strasbourg. That is something that I wish to stop, in the interests of trade unions.