Employment Bill [HL]

My Lords, I speak to Amendment No. 36 and in support of Amendment No. 33. I also take the opportunity to thank the Minister and the noble Lord, Lord Lester of Herne Hill, for their unstinting efforts in seeking an accommodation in respect of the principles in the Bill. I will seek not to rehearse the arguments and the history of how we got here, except to say that I do not take lightly, and I fully appreciate, the Government’s difficulties in seeking to strike the right balance between maintaining free democratic trade unions on the one hand and protecting and defending the rights of the individual on the other. Nevertheless, the amendments address some overall deficiencies in the Bill. The proposals in the Bill are far-reaching. The most fundamental sanction that can be taken against a trade unionist—the ultimate sanction—is to deny that individual the right to belong to a trade union. Therefore, such action cannot and should not be taken lightly; it can and should only be taken with due regard for natural justice and, of course, the rights of the individual. Neither Amendment No. 33 nor Amendment No. 36 attacks the fundamental principles and substance of the Bill. As has rightly been said, if we were debating this without the background of what was said in the context of the European Court, we might have started at a different point. The amendments seek to ensure that we have proper procedures and safeguards built on the principles of natural justice. It is ironic that the Bill lays out a course of action that would automatically be in a tribunal if an employee was dismissed and lost his or her employment. Therefore, the amendments seek to argue that we should address the procedures and ensure natural justice, as well as that the rights of the individual must always be protected. The Government argue that, because the closed shop no longer applies, a member who is expelled is therefore not subjected or exposed to any significant detriment. I disagree with that; I take a different view. I have here the schedule of benefits from my union, which runs to about 14 primary benefits, up to incapacity benefit for an accident at work. But the most important benefit that some sections of our membership would enjoy would be legal representation. If a lorry driver is charged under the Road Traffic Act and has to appear in court without proper representation, he or she could end up losing his or her licence—and if you lose your licence as a lorry driver, it follows that you lose your job. For me, that would be a significant detriment. I would go a step further by saying that it could represent substantial hardship. That should be taken into consideration. There are many other examples of benefits, such as two weeks’ convalescence in a convalescent home after a period of illness, but I will not detain the House further on the range of benefits that could by lost by individuals in my union. I will only say that my judgment is that some of these circumstances could be regarded as exceptional. I recognise that, in terms of safeguards for the individual, the Bill is predicated on remedies. I am not against remedies in proven situations but, in circumstances such as these, the Government owe protection and not remedies to the citizen. Remedies are last resorts. It is said that it is open to an aggrieved individual to go to a certification officer or an industrial tribunal, or to go to the civil courts, but that is not the foundation on which we as a nation have historically built our industrial relations or the road to accessing justice. I therefore hope the Minister will clearly indicate a pathway for protection rather than a pathway to remedy. In every industrial relations case where a worker’s job or livelihood is at risk he is entitled to a very basic and fair procedure. That is why we in your Lordships’ House believe it important to state clearly that a person who is to be excluded or, more importantly, expelled should be told the case to be answered. He should also be told the time and place of the hearing. Representation is an important facet of our form of civil justice, but I have read nothing in the Bill about individuals who may feel a deep sense of grievance. How do they put that right? I would like to hear about the appeals procedure. If that does not appear in the Bill, the relevant codes of practice through the certification officer or, preferably, ACAS should make it absolutely clear. I believe that the denial of someone’s trade union membership should test those with the power and authority to take that decision. I see no test whatever attached to the trade unions. What test have they got to meet? It is important. My noble friend Lord Lester of Herne Hill referred to the consideration of the Joint Committee on Human Rights. The Joint Committee has considered the matter but has not gone beyond the report that it published. However, there are serious doubts whether there is a breach of the Human Rights Act. There are concerns that Articles 9, 10 and 11 may well be breached. Those articles cover freedom of conscience, expression and assembly. I ask the Minister to have another look at whether the human rights situation is adequately addressed. In conclusion, I hope the Minister will say what criteria the decision to exclude or expel will be based on. How can a trade union be accountable for the decision? We must all be accountable for our actions. Finally, what procedures will be put in place to ensure that natural justice and legal redress are available to the individual?