Employment Bill [HL]

I thank all noble Lords for contributing to what in some ways is a repeat discussion on Clause 17, and in other ways is new. Quite understandably, the clause raises points of concern for Members of the Committee on all sides. It was particularly refreshing to hear the contribution of the noble Baroness, Lady Perry. I cannot say that the Government agree with every word she said, but it was a valuable addition to our deliberations today. If I heard the noble Lord, Lord Henley, right, we seem to have a consensus that the Government are obliged—as the noble Lord, Lord Lester, has pointed out on more than one occasion—because Article 46 of the convention requires the UK to abide by such a judgment. It is an important principle, as it is important that it should be accepted by the Official Opposition. The Liberal Democrats have agreed with us on this for a long time. What is more, it is the policy of this Government to make sure that our law does comply with convention rights. We believe that the judgments of the European Court of Human Rights should not be disregarded. I shall be as brief as I can, but it is important that I should put the Government’s case for Clause 17 as it stands. The clause makes the changes to trade union law which are necessary to ensure that we adhere to the court’s judgment. Under our current law, it is unlawful for a trade union to expel or exclude a person from membership if the sole or main ground is that person’s membership or former membership of a political party. The relevant provisions of the Trade Union and Labour Relations (Consolidation) Act 1992, which came into force in 1993, refer to such involvement in political parties as ““protected conduct””. ASLEF, as the Committee knows well, made a complaint to the European court that this aspect of our law represented a breach of Article 11 of the convention concerning freedom of association. As in so many of these cases, the ASLEF case involved several competing rights. On the one hand, the expelled individual had the right to associate with others and the right in a free country to hold and express his beliefs. On the other hand, there are the rights of other members of the union to associate with people of their own choosing in conformity with their union’s membership rules. The court acknowledged that our law had tried to strike a balance between these competing rights. In 2004, Parliament considered these issues in some detail. Section 33 of the Employment Relations Act 2004—some Members of the Committee will bear the scars of that particular operation; I use that word because ““discussion”” does not quite capture it—amended the relevant provisions by giving more freedom to trade unions to expel or exclude political activists. However, the court determined that the UK law still did not strike the right balance. The judgment acknowledged the importance of individual rights but explicitly stated: "““However … Of more weight in the balance is the””," trade union’s, "““right to choose its members””." It is important to remember that, in making its decision, the court was mindful that the BNP member involved did not suffer any material loss as a result of losing his union membership. By that I think it meant that there was no closed shop any more; he did not lose his job as a consequence. Of course, the noble Baroness talked about rights in terms of advice and other benefits that come with trade union membership. The court argued that his ability to express his political views was not significantly affected. We have to consider the court’s judgment and it should be foremost in our minds when we consider this clause. Last summer we held consultation on the appropriate way to respond to this important judgment. We put forward two options on how to amend the relevant legislation. Our proposals implement the simpler option—option A—favoured by the large majority of respondents, not just trade unions but also independent legal organisations such as the Law Society of Scotland and the Employment Lawyers’ Association. Clause 17 removes all reference to ““protected conduct”” in those two sections of the 1992 Act. Section 174 sets various limitations on the ability of trade unions to expel or exclude individuals, one of which relates to protected conduct. Clause 17(2), which we are busy debating, repeals the provisions in Section 174 relating to protected conduct. Section 176 of the earlier Act provides the remedies for a breach of Section 174, and it refers to protected conduct in several places. Clause 17(3) repeals those references. Therefore, Clause 17 increases the freedom of trade unions to set and apply their own membership rules, but we argued that the clause leaves important safeguards in place. Where individuals believe that a union has applied its membership rules wrongly or arbitrarily, then such individuals can take legal action against a trade union for breach of rule. Expelled members can also make a complaint to the certification officer about such alleged breaches of rule. As noble Lords know, the certification officer is a specialist authority in trade union matters and his or her powers to act as a speedier and cheaper alternative to the courts were significantly extended in 1999. I point out that Clause 17 in no way affects those protective arrangements. Some noble Lords may be concerned that, despite the court's judgment, Clause 17 provides too much freedom to trade unions and that, hypothetically, this freedom would create the potential for abuse. This has to be approached sensibly, as I believe my noble friend Lord Brett did in his remarks a few minutes ago. Let us recall that the origin of the provisions which Clause 17 repeals can be found not in common law or in previous legislation going back decades, but in the Trade Union Reform and Employment Rights Act 1993. We are not talking about some fundamental or long-standing feature of our trade union law. I agree with my noble friend that there is no evidence at all, either before—in other words, when the position of trade unions was exactly as we intend it to be if Clause 17 comes into law—or after 1993, that trade unions have sought to expel or exclude individuals for belonging to mainstream political parties. The hypothetical threat of union abuse is entirely without precedent. This is hardly surprising. Trade unions are very keen to attract members. They are not in the business of making wholesale expulsions or exclusions. Therefore, we must not legislate against a hypothetical threat; we have to make a rational assessment of the evidence which exists in the industrial relations context of today. In other words, we must apply better regulation principles when considering this issue. By the same token, we must guard against overcomplicating the law. We want to avoid creating scope for uncertainty to arise, and for vexatious, politically motivated, complaints to be made against trade unions. As my noble friend Lord Jones said the last time the Committee met, on 13 March, we amended the relevant parts of trade union law in 2004 to make it clear that it was lawful for trade unions to expel or exclude political activists. That was an important change, and was probably more significant than the provisions in Clause 17. There is no evidence that the 2004 Act has led to abuse or politically motivated purges by unions. Clause 17 provides further freedom for trade unions in accordance with the ASLEF judgment and would allow unions to use political-party membership as a potential criterion for determining their own membership. Apart from this clause, this Bill does not deal with trade union law. Its place in the Bill reflects the importance the Government attach to human rights and to the judgments of the European court. It amends the particular part of trade union law which was found to breach the European convention, in a way that is consistent with the judgment and avoids unnecessary complication.