Employment Bill [HL]

My Lords, this is a large and important group of amendments that enables us to address the issues raised by Clause 18 at an early stage in our deliberations today. Clause 18—formerly Clause 17—has aroused much debate throughout the Bill’s passage to date. The amendments give me a welcome opportunity to explain how the Government intend to reconcile, as far as we can, the differing views that have been expressed. It has been well worth having such a debate at this stage. I shall start with Amendment No, 33, in the name of the noble Lord, Lord Lester, and talk to the others in the group as well. All the amendments relate directly to Clause 18. A similar amendment was moved by the noble Lord in Committee, and this latest version certainly addresses one of the specific points that my noble friend Lord Jones raised in that debate—that the effect of the previous amendment was not restricted to exclusions or expulsions on grounds of political party membership alone, but included any decision to deny membership based on a person’s conduct. Although that was not the noble Lord’s intention, I am grateful to him for drafting a new amendment, which takes note of that point. We also made it clear in Committee that we wished to engage further with the noble Lord and his advisers before Report to see whether we could agree the way ahead. I thank him for making himself available. We have had detailed discussions with him at both ministerial and official level. My noble friend Lord Morris of Handsworth has also attended these meetings, which included a meeting with the honourable Pat McFadden MP, the Minister responsible for employment relations, and I think that everyone understands the position better as a result. I believe that significant progress has been achieved. The noble Lord has already said that his Amendment No. 33 is informed by the detailed discussions that he and my officials have held in the weeks and months since Committee. In a spirit of compromise—noble Lords have wanted to know the Government’s view on this since the start of the debate—we have offered to introduce an amendment to this Bill that would centre on the second of the two options presented in last year’s consultation document. Noble Lords will recall these two options. We know that this approach, option B, is preferred by the noble Lord, Lord Lester, and by many others who oppose the current version of Clause 18, which is based on what we describe as the deregulatory option A. We intend to present the government amendment at Third Reading. The noble Lord, Lord Lester, made it known that he wanted three types of safeguard to be clearly reflected in any government amendment. These safeguards are expressed in proposed new paragraph (a) of his present amendment and in paragraphs (a) and (b) of the new subsection 4C that proposed new paragraph (b) of his amendment would insert. Let me assure the House and the noble Lord that the planned government amendment contains these three categories of safeguard. The second of these safeguards concerns the procedures that unions follow when excluding or expelling members on these grounds. I know that procedural fairness has been a concern of the noble Lord, Lord Campbell of Alloway. I am very grateful to him for having met my noble friend Lord Jones, the Minister and myself during these proceedings. I hope that our proposed amendment, when it appears, will satisfy him, too. The Government need to assure themselves that each safeguard is appropriately expressed in terms that are neither too strong nor too weak. This takes time and is the reason why we could not table our amendment for consideration today. We want to ensure that our amendment is clear and provides the level of union autonomy that the ECHR judgment requires. It should also impose reasonable requirements on trade unions and reflect the principles of better regulation. In particular, we want to minimise the scope for politically inspired litigants to use imprecise wording as a basis for making vexatious complaints to the employment tribunal. I believe that the House shares this view. I will not go into detail today. If the noble Lord were to press Amendment No. 33, we would be concerned that it does not fully meet these tests, although we think that it goes a long way in the right direction. We continue to work on alternative wording and we will continue to consult the noble Lord during that process. I hope that we will be able to share the amendment with other noble Lords, including the opposition Front Bench, the noble Lord, Lord Campbell of Alloway and other noble Lords—I am not discriminating between any of them—perhaps later this week, so that they can see our proposed amendment before it is tabled. If possible, we would like to see a compromise amendment, commanding the broad if not universal consent of this House, going to the other place, where the Bill has yet to be considered. We have held discussions with the TUC about the same issues and we will continue to talk to it. The TUC has also made it clear that it opposes any move to legislate for option B but, when our compromise appears, we will have to see what attitudes are taken by all parties in this House and outside. I believe that there is every prospect of finding a satisfactory compromise in time for Third Reading. Therefore, when the noble Lord comes to decide what to do with his amendment, I urge him to be good enough to withdraw it so that further consultation can occur. The other amendments in this group were spoken to and therefore I need to respond to them, but I shall do so as briefly as I can. Amendment No. 34 would ensure that trade unions could not exclude or expel a person in any circumstances on the basis of his or her former political party membership, the vital word being ““former””. I am afraid we believe that this would limit still further a union’s autonomy in setting and applying its rules—the very point that the European Court of Human Rights was trying to uphold. There was no hint in the ECHR judgment that a limitation of union autonomy of this type was necessary or called for. Of course, we understand the argument advanced by the noble Lord, Lord Henley, that individuals may change their views and should not be punished for once holding a particular set of political beliefs. I am sure that unions will be alive to that point and will not wish to deny membership to a person who, from their viewpoint, is a reformed character. However, there will be cases where that has not occurred. As we know, people frequently move into and out of party membership but their political outlook remains unchanged. In fact, their views can harden. Unions should therefore be capable of acting against such individuals, subject to the general safeguards provided by option B. Amendment No. 34A was spoken to by the noble Baroness, Lady Perry, and I thank her, as I did in Committee, for her part in this. However, we fear that the amendment would widen too far the test in Amendment No. 33 relating to the scale of the detriment which must occur in order to make it unlawful to expel or exclude. Amendment No. 33 refers deliberately to ““exceptional hardship””—a term used within the key judgments of the European Court of Human Rights. Amendment No. 34A would widen that to include ““any financial disadvantage””. We absolutely understand where the noble Baroness is coming from on that. She echoes a point made by my noble friend Lord Morris: the fact that there is no longer a closed shop does not mean that there is no financial disadvantage in not being a member of a trade union. Our problem with the noble Baroness’s amendment is that it would, in effect, prevent a union expelling or excluding on those grounds if even one penny of financial detriment resulted. I am afraid that from a practical point of view that goes too far. It would virtually reduce union autonomy in this area to zero and it might well mean—although I shall not be absolutely decisive about this—that we would fail to comply with the European Court’s judgment. Therefore, I am afraid that we cannot support her amendment. Amendment No. 35 seeks to define what type of organisation qualifies as a political party. We have not had a definition of this kind since these provisions were first introduced in 1993. I have not been aware that any problems have arisen as a result, so I want to advance the case that we should be very cautious about adding wording of this kind to the text. We think that the amendment in the name of the noble Lord, Lord Henley, contains a specific and serious problem; namely, that political parties are defined as UK ones only. Many members of British trade unions are foreign nationals and their numbers, we are delighted to say, are increasing. Some of those individuals will be members of political parties in their own countries, and of course political extremism can be found in all countries. Trade unions must be free to take action against such individuals, subject, again, to the sort of general safeguards that option B provides. Therefore, we cannot support that amendment either. Amendment No. 36 is in the name of my noble friend Lord Morris of Handsworth, and many of the arguments that I addressed in relation to Amendment No. 33, which I know he supports, apply to his amendment. I hope he will be satisfied with what I have said about the Government attempting to come up with a consensual compromise on this. Amendment No. 37 is, in effect, the same as Amendment No. 35, and relates to Amendment No. 36. I shall deal with the amendment tabled by the noble Lord, Lord Morris of Handsworth. The report of the Joint Committee on Human Rights underscores our view that this complex issue requires careful drafting of a legislative solution, to ensure that we comply with the European court’s judgment while avoiding the potential for unwelcome side effects. As I stated in response to the amendment tabled by the noble Lord, Lord Lester, we are actively engaging with him to find a suitable compromise, and I hope that approach satisfies not only my noble friend but the House.