Employment Bill [HL]

moved Amendment No. 2: 2: Clause 4, page 4, line 11, at end insert— ““““(3AZA) Subsection (3A) does not apply to the determination of any proceedings brought in respect of the right not to be excluded or expelled from a trade union in relation to protected conduct under section 174 of the Trade Union and Labour Relations (Consolidation) Act 1992 (c. 52) (right not to be excluded or expelled from union).”” The noble Lord said: My Lords, this amendment, which stands in my name and that of my noble friend Lord Razzall, is a paving amendment for Amendment No. 33, as well as for Amendment No. 36 in the name of the noble Lord, Lord Morris of Handsworth. I shall, if I may, give just one explanation for the amendments in this group. The amendments are all designed to give effect to the judgment made on 27 February 2007 by the European Court of Human Rights in a chamber of the court presided over by the British judge Sir Nicolas Bratza. I will not go into the detail of the judgment, which was explored thoroughly at Second Reading on 7 January and on the third day of Grand Committee on 13 March. The European Court of Human Rights decided that the existing legislative framework governing the right of trade unions to expel or exclude members or would-be members on the basis of membership of a political party did not strike the right balance between the rights of unions and freedom of association and the rights of individuals based on conscience and belief. Therefore, it became incumbent on the United Kingdom to give effect to the judgment by introducing legislation. This debate, like the earlier debates to which I have referred will, in due course, be scrutinised by the Committee of Ministers of the Council of Europe, which is responsible for supervising the execution of judgments of the European Court. How this House and the other place deal with this will no doubt be looked at by the Committee of Ministers in due course, to ensure that the judgment has been properly executed. I am grateful to Ministers and their officials for meeting with me and the noble Lord, Lord Morris of Handsworth, at our request, to discuss this. I am also grateful to have had the benefit of meeting with TUC lawyers, who have discussed their concerns with me in great detail. It is difficult to strike the right balance. Amendments Nos. 31 and 32 the name of the noble Lord, Lord Campbell of Alloway are about ensuring that a fair balance is struck. The problem is how to respect the vital autonomy of the trade unions on the one hand, and how to provide effective safeguards for individuals against the misuse of trade union powers on the other. Another problem is how to discourage bodies such as the BNP, which engage in vexatious and mischievous litigation, from harrying in an abusive way in order to further their political cause. Another factor is that to exclude or expel a trade union member or would-be member solely on the basis of their membership of a political party is a strong thing to do, especially if it leads to exceptional hardship. The Joint Committee on Human Rights has looked at this question. The noble Lord, Lord Morris, might want to refer to that in speaking to his Amendment No. 36, which is the version of the Joint Committee on Human Rights. There is very little difference between that amendment and Amendment No. 33. Both are designed to introduce safeguards without violating union autonomy. I have always believed, in the course of these debates, that it is not in the interests of trade unions or their members to leave these matters to common law and the Queen’s courts, as used to be the case before there was any statutory framework. When I was rather younger I used to appear before the courts in trade union cases. I was always uneasy about the way in which we obliged judges to intervene and provide remedies in these cases. I also think that legislation should do its best not only to spell out the safeguards but also to ensure that as much as possible mischievous and vexatious litigation is avoided. The way in which the Government have approached this historically is, after the judgment, to publish a consultation paper with two options. The first was to do away with all safeguards and, essentially, leave it to the common law. The second was to produce adequate safeguards in the legislation. Our argument was that we should go for the second option and not the first. It is fair to say that the TUC and the trade unions which gave their views during the consultation wanted there to be no statutory safeguards. If I were to be frivolous, I would say that power is delightful and that absolute power is absolutely delightful, and that, therefore, it is understandable to say there should be no safeguards at all. But that would not be a fair way of putting it and I fully respect the trade union position on this. The way in which the substantive amendments in my name and that of the noble Lord, Lord Morris of Handsworth, operate, essentially, is to provide for three safeguards in a case where a trade union wants to exclude or expel on the basis of membership of a political party. These come out of the judgment of the European Court of Human Rights rather than out of the air. The first safeguard is that the political party concerned, and membership of that party, should be in conflict with the values and ideals of the trade union itself. Obviously, if that is the case, that is the starting point to justify expelling or excluding. Secondly, the decision should be taken in accordance with the rules of the trade union, including fairness, which, in any case, the common law courts would compel. The third safeguard is that the individual would not suffer exceptional hardship by reason of the expulsion, exclusion or related conduct by or on behalf of the union rather than anyone else in relation to his employment or employment benefits. Those are the safeguards to which all the amendments in the group seek to give effect. As far as we are concerned, everything depends on how the Minister responds. Perhaps, after we have heard his response, it will be possible to see where we are going. I beg to move.