Employment Bill [HL]

My Lords, having withdrawn Amendments Nos. 1 and 2, as ordained by the Public Bill Office, I was advised this morning by that office and others that I may speak to Amendment No. 3 with Amendments Nos. 8 to 10, which are supported, subject to a caveat, so that I am not speaking out of order. The caveat is that the intendment of Amendments Nos. 1 and 2 should be taken into account before these measures are implemented and that before these measures are implemented the reservations of the TUC should be recognised. I have referred to them in the past; this is a short speech and I shall not repeat myself, but they will be spoken about again today by the noble Baroness, Lady Turner of Camden. Amendment No. 3 first came to my knowledge on a chance visit on 29 May to tidy up my desk. As I passed the Public Bill Office, I was handed the amendment. I called up the Department of Trade and Industry to inquire where the Minister was, as I wanted to talk to him about an arrangement that we had made. I was informed that he was in Mexico and had been there for quite some time and that I could not speak to him. The scenario has changed. Having opposed, with the Government, the Lib Dem amendment to Clause 18 on Report and—because I am not a member of the Liberal Democrat Party—having no knowledge of the negotiations that resulted eventually in Amendment No. 3, this came as a great surprise. Amendments Nos. 1 and 2 had been withdrawn on Report on the assurance, made between myself and the Minister, that there would be further consideration and consultation, not as to the substance but as to the drafting, before Third Reading. Of course, I hoped that the noble Lord, Lord Jones, was a man of great honour and that if you made a deal with him he was the sort of man who would never rat on you. I rang up to ask him this morning if he could come and deal with this matter today, and deal with the arrangement that we made—because the noble Lord, Lord Bach, knows nothing about it. Very few other people know anything about it, although there is a reference to it at col. 1304 of the Official Report of 19 May. But I was told that the noble Lord, Lord Jones, could not come because he is in Azerbaijan. I do not even know where that is, but I am sure that it is a long way away. So there it is—noble Lords will have to take it from me, pending the noble Lord’s return to read the report. This morning I informed the Public Bill Office of that arrangement. The only other person who knew about it was my Chief Whip. I informed my Chief Whip. If I make an arrangement I inform my Chief Whip—she knew. I said to the civil servant in the department on 29th May that there had been no consultation and no communication with the Minister. The civil servant arranged with two other civil servants to meet me on 30 May in the Royal Gallery. What was said was confidential and cannot be repeated. The Public Bill Office did not know then that there had been this arrangement and had sent the e-mail which ordained withdrawal of these amendments, which today, if they had not been withdrawn, would have been moved as complementary to Amendment No. 3. That is the straight position. The scenario turned itself upside down in the Recess. I opened my e-mail. I am not very good with my e-mail. I leave it alone at weekends because I get very bored with it. Yesterday, at about six o'clock, I opened it up and then I knew that I could not move the amendments. There was then no time to draft an amendment or to do anything. I had a word, by chance, with the noble Baroness, Lady Turner. She did not realise until very late—I cannot remember why—that she could not put down an amendment. So one has been rushed towards the barrier. I am criticising no one because criticism is idle. I am just saying that we have been rushed towards the barrier, and here we are. The grounds on which I would seek compatibility today if I had those amendments are strictly relevant for the consideration of government. I have tried to put them in a condensed form. First, these provisions as to conduct are ever subservient to the overarching authority of the ordained procedures as reflected in Amendments Nos. 1 and 2, to which there is no reference either in Amendment No. 3 or in Clause 18. Secondly, the proper balance on adjudication is not just between, as it is put, the trades unions on one side, the rule book, the objectives, and the interests of those seeking membership or wanting to remain in membership, where notice is given and the other requirements of our tenets of natural justice are observed. That is not exactly the balance that must be struck, which is as stated in Amendments Nos. 1 and 2. No one has challenged that as being wrong at any stage; it is not wrong, it is entirely right. The balance must be struck between the competing convention rights on the facts and circumstances of each case. The third issue—there is only one more after this and I will then sit down—is that without Amendments Nos. 1 and 2, or having regard to their intendment, there is no guidance or signpost to the trade union on adjudication or the employment tribunal on appeal. There is no guidance that the implementation of these provisions as to conduct must be in accordance with the mandatory effect of the ordained procedures. The last matter affects the amendment of my noble friend Lord Henley, in that the interpretation of domestic law that distorts that balance would not be acceptable to the Strasbourg court. In other words, one must make it plain that the adjudication must be under the overarching authority of the Strasbourg court. This matter arose on Report. Objection was then made to this amendment on grounds totally wide of the intendment as expressed in the ordained procedures. You cannot amend domestic law to suit your own purpose; you must have implementation within the overarching authority. It is to be hoped that the Government heed the caveat and so reduce the risk of further application to the court. The door has been left ajar under these amendments. There was no time to put down our amendments. I am not saying that it was the fault of the Government, but it was not our fault. If, as I have said and shall not repeat again, the Government had had regard to this, everything that should be achieved would have been achieved. It is better to leave it that way than divide the House.