Employment Bill [HL]

My Lords, I agree with what the noble Lord has just said, but not, of course, with what led up to it. Everything depends now on the response of the Minister. Up to this stage, he has not accepted the case as put forward by the noble Lord. I am not being critical for the sake of it. I am merely stating a fact. Columns 314 to 316 of Hansard for 13 March 2008—the third day of Committee—show that the Minister does not accept what is proposed by the noble Lord, Lord Lester. In addition, he has had conversations and discussions—about which we do not know now, but about which we shall know eventually, and probably, in the light of what is said in this debate—about what the Minister proposes to do. As I understand it from the bush telegraph, the Minister is considering whether he will introduce amendments which relate to safeguard amendments to Clause 18; that is, the amendments to which the noble Lord, Lord Lester, referred. According to my information, he is considering whether to do that and then, when he has done that, what he will do. This argument is somewhat sterile until we know what that is because we could divide on some things today, such as what happens to sailors not getting the right wages. However, we cannot divide on this today as we have no idea what the Government will put down on Third Reading. The noble Lord was good enough to refer to my Amendments Nos. 31 and 32, which I know the Government are considering taking over in any event. They have not said that they will or that they will not, yet they acknowledge the intendment of the amendments, so if those are to be redrafted it will be up to the Government to do it. However, those are not safeguard amendments to Clause 18 but purely procedural ones, and there is a distinction—although, as we will see in a moment, the two overlap. There is a fundamental issue not just between the noble Lord, Lord Lester, and myself but between the noble Lord and the Government. That is whether Clause 18 is wholly effective in affording conformability of our domestic employment law with the conventions in accordance with the Strasbourg court’s decision on ASLEF. I will not go into technicalities, but it referred to certain provisions of our domestic law as being incompatible. Those provisions have to be got rid of, as there is an obligation on the Government to seek conformity. Clause 18, in the opinion of Government—and in my respectful opinion, which really does not matter as much as theirs—is wholly effective, requisite and sufficient for its purpose of seeking conformity. If that is right, then the Government’s view as expressed in the passage that I quoted from day three in Committee is, again, right; there is in fact no need at all for these safeguard amendments, as they are called. If that is so then the fundamental question raised, on which options should be implemented, flies out of the window. None of us knows what is really going on until we know what the Government will decide to do. The Government may wish to formulate their own concept of a safeguard amendment—I do not know—but their concept of Amendments Nos. 31 and 32 is fundamentally a question of drafting. As everyone knows, I am not a draftsman and I make that inevitable qualification. Amendments Nos. 33 and 36 have to be considered with some care in another context: do they distort, as I suggest they do, the proper balance of the ordained ASLEF procedures in favour of the trade unions? If there is no need for the trade unions to be protected, as was once suggested at some passage—I do not have it in mind but the noble Lord, Lord Lester, will know where he referred to protection of the trade unions—and the Minister assured the Grand Committee that the trade unions were in no need of such protection, that is another matter which has to be taken into account in this context. I shall not discuss the nature of the balance because it is related to Amendment No. 31, which is in the last group of amendments and it would be wrong of me to pre-empt it. Another aspect of these safeguard amendments is the tightening-up of ordained procedures in a way which is wide of the substantial flexibility with which they are to be implemented on the facts and circumstances of each case and on a balance as between the respective convention rights of the trade unions to set their rules and choose their membership, as acknowledged in ASLEF, and the rights of the individual who wishes to join or remain in a trade union. A wide ambit of special, ordained procedures has to be followed. If they are not followed, back you all go to another court in Strasbourg. That is mandatory. Professor Wedderburn, who has much more experience than I, gave a warning about tightening up what are supposed to be flexible procedures—I shall not go into the details today—but that warning appears to have been not heeded in the context of membership of a political party. You only have to look at the amendments passing through Grand Committee to see that, with every effort to amend, we are starting to move away from, or tighten up, what is a flexible procedure, and this will inevitably engender more litigation. This is no time for a long speech. I have been too long already. I have tried to do justice, without adding my version to the speech of the noble Lord, Lord Lester. The truth of the matter is that until we know what the Government are going to do, there is no constructive purpose in saying any more. I would like to mention one problem; I am not being critical of my party but I seek clarification. Those on my Front Bench in Grand Committee said that they strongly favoured the safeguard amendment to Clause 18 tabled by the noble Lord, Lord Lester. I oppose it. I am not saying who is right or wrong again, but the party to which I adhere and I were not in agreement. If you look at the Marshalled List, with Amendments Nos. 34, 35 and 37, my party has actually supported in principle Amendments Nos. 33 and 36. Whether it meant to do so or not is neither here nor there. There is plenty of time between now and Third Reading for everybody to find out what everybody else really thinks or says. In a sense, it is a point against me that my own party does not agree, but on the other hand, one has to argue one’s case, even if there are a few warts on it.