Employment Bill [HL]

moved Amendment No. 3: 3: Clause 18, page 16, leave out lines 34 to 36 and insert ““after subsection (4B) there is inserted— ““(4C) Conduct which consists in an individual’s being or having been a member of a political party is not conduct falling within subsection (4A) if membership of that political party is contrary to— (a) a rule of the trade union, or (b) an objective of the trade union. (4D) For the purposes of subsection (4C)(b) in the case of conduct consisting in an individual’s being a member of a political party, an objective is to be disregarded— (a) in relation to an exclusion, if it is not reasonably practicable for the objective to be ascertained by a person working in the same trade, industry or profession as the individual; (b) in relation to an expulsion, if it is not reasonably practicable for the objective to be ascertained by a member of the union. (4E) For the purposes of subsection (4C)(b) in the case of conduct consisting in an individual’s having been a member of a political party, an objective is to be disregarded— (a) in relation to an exclusion, if at the time of the conduct it was not reasonably practicable for the objective to be ascertained by a person working in the same trade, industry or profession as the individual; (b) in relation to an expulsion, if at the time of the conduct it was not reasonably practicable for the objective to be ascertained by a member of the union. (4F) Where the exclusion or expulsion of an individual from a trade union is wholly or mainly attributable to conduct which consists of an individual’s being or having been a member of a political party but which by virtue of subsection (4C) is not conduct falling within subsection (4A), the exclusion or expulsion is not permitted by virtue of subsection (2)(d) if any one or more of the conditions in subsection (4G) apply. (4G) Those conditions are— (a) the decision to exclude or expel is taken otherwise than in accordance with the union’s rules; (b) the decision to exclude or expel is taken unfairly; (c) the individual would lose his livelihood or suffer other exceptional hardship by reason of not being, or ceasing to be, a member of the union. (4H) For the purposes of subsection (4G)(b) a decision to exclude or expel an individual is taken unfairly if (and only if)— (a) before the decision is taken the individual is not given— (i) notice of the proposal to exclude or expel him and the reasons for that proposal, and (ii) a fair opportunity to make representations in respect of that proposal, or (b) representations made by the individual in respect of that proposal are not considered fairly.”””” The noble Lord said: My Lords, on Report I said that the Government planned to bring forward proposals at Third Reading to implement the approach to the ECHR judgment in the ASLEF v the United Kingdom case which was specified in Option B in last year’s consultation document. I also said that our proposals would contain texts on the three types of safeguards which, among others, the noble Lord, Lord Lester of Herne Hill, and my noble friend Lord Morris of Handsworth had sought. These proposals are set out in Amendments Nos. 3, 8, 9 and 10. I shall speak also to the amendments tabled by the noble Baroness, Lady Wilcox, and the noble Lord, Lord Henley. I shall first speak to Amendments Nos. 3, 8, 9 and 10. The European Court’s judgment in the ASLEF case is clear: the issue centres on balancing the conflicting rights under Article 11 of the European Convention on Human Rights on the freedom of assembly and association—that is, between the right of an individual to belong to a trade union and the right of a trade union to determine its membership. The current wording of Clause 18 implements Option A in last year’s consultation, which was deregulatory and removed all references to protected conduct from Sections 174 and 176 of the Trade Union and Labour Relations (Consolidation) Act 1992. Many Members have expressed concern that Option A tips the balance too far in favour of the trade unions and so, having listened to the arguments over the months, and in a spirit of compromise, we have decided not to pursue Option A. Through consultation with Peers of all parties and on all sides of the House, we have sought to find a wording which secures the correct balance in response to the court’s judgment. Amendment No. 3 therefore restores the provisions relating to protected conduct which the current version of Clause 18 repeals. The amendment also inserts new subsections (4C) to (4H) into Section 174 of the 1992 Act. Together these new subsections set three conditions which a trade union must meet if it wishes to expel or exclude a person on the grounds of that person’s membership of a political party. These three conditions in effect provide three types of safeguard when viewed from the standpoint of the individual concerned. The first safeguard is set out in new subsections (4C), (4D) and (4E). It specifies that the membership or former membership of a political party must be contrary to a rule or objective of the trade union. A union’s rules are well known and easily accessible—indeed, there is a statutory duty for a union to supply a copy of its rules to any person whether or not they are a union member—but union objectives are usually different in character. There may be many of them, they may change more frequently over time and they may be found in many different documents, and individuals cannot be expected to be able to access or understand them all. The amendment therefore provides, in new subsections (4D) and (4E), that it must be reasonably practicable for a person to ascertain the objectives in question. New subsection (4D) sets provisions in the case where a person is expelled or excluded for their current party membership. New subsection (4E) sets the corresponding provisions where the person is excluded or expelled for their former membership. We recognise that a person’s ability to ascertain an objective depends on whether they are a member of the trade union at the relevant time. Obviously, trade union members should be able to know more, so we set different tests in relation to each group. For those who are or were trade union members at the relevant time, the test is whether it is reasonably practicable for a member of the union concerned to ascertain the objective in question. For those who are not or were not trade union members at the relevant time, the corresponding test is whether a person working in the same trade, industry or profession as the expelled or excluded individual could reasonably ascertain the objective. Those provisions are deliberately based on the current wording of Section 176(1D) of the 1992 Act. We feel that consistent wording would assist union understanding and help unions comply with the law. However, we have decided to use a different comparator test for non-union members from that which is currently found in subsection (1D). To achieve consistency, the amendment therefore realigns the test in Section 176(1D). The second safeguard is that a union’s decision to exclude or expel must be taken fairly and in accordance with its own rules. In other words, this condition relates to procedural fairness, a matter that particularly concerns the noble Lord, Lord Campbell of Alloway, as well as other noble Lords. The relevant provisions are set out in subsections (4F), (4G)(a) and (4G)(b). Subsection (4H) specifies what is meant by an unfairly taken decision. These mirror the basic tests of procedural fairness that the courts apply in common law, the significance of which has been stressed in the House on several occasions. We have not set wider or more general tests of fairness in order to attempt to avoid overcomplicating the law and to avoid giving significant scope for mischievous or vexatious litigants to challenge union decisions. The third safeguard is found in new subsection (4G)(c). It provides that the decision to expel or exclude on these grounds must not lead to a loss of livelihood or other exceptional hardship because of the resultant loss of union membership or a failure to obtain union membership. ““Exceptional hardship”” is the term used in the ASLEF judgment and in other ECHR cases. It will mostly occur where a person loses his or her job, but it may conceivably occur in some other limited cases where an individual suffers another substantial detriment. We do not believe that exceptional hardship is a real threat to most workers because other laws in this country outlaw the closed shop, but we cannot say for certain that such substantial hardship will never occur in any circumstances. Hence, this extra safeguard is included. Amendments Nos. 9 and 10 flow from Amendments Nos. 3 and 8. They make consequential changes to Clause 21 and the repeals schedule respectively. Clause 18, as it now is, has aroused strong opinions and passions. At the outset we had hoped to simplify the law in this area through deregulation. We strongly advocated that approach in Grand Committee and elsewhere. However, our arguments have clearly not found favour around the House. Recognising the will of the House, we have therefore come forward with this alternative approach in, as I have said, a spirit of compromise. I thank all those who have taken part in these debates at all stages of the Bill for devoting their time to assisting us in identifying the alternative. I am particularly delighted that the noble Lord, Lord Lester, who cannot be with us today, has added his name to the government amendments. We have been mindful of the views of the Joint Committee on Human Rights on this issue, and our amendment reflects all three safeguards that it advocated. I cannot claim that our amendments will necessarily simplify the law—we are, after all, adding six new subsections to Section 174—but we have tried to draft the provisions in a way that goes with the grain of union practices and existing law. We have tried to be as precise as we can to avoid creating room for mischievous litigation. It should be remembered that the net effect of all these changes is to provide greater autonomy for trade unions provided that they act responsibly. They will enjoy greater freedom than they have now to expel or exclude persons whose political party membership is in opposition to the union’s political beliefs. We are therefore convinced that our approach is consistent with the ECHR judgment. I beg to move.