Employment Bill [HL]

My Lords, the noble Lord, Lord Campbell of Alloway, has referred to TUC reservations. There are indeed TUC reservations about the amendment, and I would not like this debate to pass without your Lordships realising what they are. I had a letter from the TUC during the recess. The TUC believes that the proposed government amendment is unnecessary, would place unjustified restrictions on trade unions’ ability to determine their membership and is likely to act as an invitation to litigation. There are serious reservations with regard to the proposed amendment. First, under proposed new Subsection (4C) it will be for the courts to determine whether membership of a political party is contrary to a rule or objective of a union. This could provide opportunities for the BNP or other similar bodies to grandstand courts and tribunals and to argue that they are not racist or fascist organisations. This issue is particularly likely to arise in the case of unions that oppose racism as part of their rules. The provision could also require unions to list in the rule books the names of any relevant political parties. Given the ease with which far-Right parties can change their names, this is likely to cause major difficulties and to create opportunities for dissidents to argue that membership of a political party is not contrary to the rules of the union. Secondly, the new procedural arrangements introduced in the proposed new subsection (4G)(a) and (b) will create a new statutory remedy for individuals for a breach of contract even though an individual can already complain to the certification officer and/or the High Court on the ground of expulsion in breach of the union’s rules. It is not clear how such double regulation complies with the Government’s better regulation standards. Thirdly, there are serious concerns that under proposed new subsection (4G)(c) one of the conditions that must be satisfied before a union can exclude or expel on grounds of party political membership is that the individual would not, "““lose his livelihood or suffer other exceptional hardship by reason of not being, or ceasing to be, a member of the union””." In the TUC’s view this condition is in no way required by the ruling of the European Court of Human Rights and could represent an unjustified restriction on trade unions’ rights to freedom of association enshrined in Article 11 of the European Convention. The expression ““exceptional hardship”” is legally uncertain and furthermore no evidence has been provided of any abuse by trade unions to justify this provision or to establish why trade unions should be thus regulated. In the absence of closed-shop arrangements trade unions have no control over individuals’ access to employment. However, the provision would potentially make a union liable for decisions taken by an employer to dismiss an individual—decisions which are beyond any union’s control or influence. Furthermore, it ignores the fact that under Sections 146 and 152 of the 1992 Act individuals are already protected from any detriment or dismissal on the grounds of being, or not being, a union member. It will be recalled that I raised this issue in connection with the previous amendment, when I pointed out strongly that the wording might tie the union to being a party to a decision by an employer over which it had no control, and which had a subsequent deleterious effect on the rights of an individual who had been excluded. There is no reason why unions should be put in the position of having to bear that responsibility in connection with an employer’s action relative to an individual member, particularly now that they no longer have closed-shop agreements. Fourthly, and perhaps most worryingly—this point was made to me by Thompsons, the legal firm which acts for a number of unions—if the amendment had been in place in the Lee case—that is, the ASLEF case—it is likely that Mr Lee could have successfully challenged the exclusion from the union even though subsequently ASLEF went on to win before the European Court. It is difficult to know how the amendment therefore gives proper effect to that court’s ruling. Those are the TUC’s views on the amendment to Clause 18. It is only right and proper that noble Lords should know what they are before they reach a decision. I realise that the amendment has wide support in this House but it seems to me that if it becomes law we may very well find ourselves once again at the Strasbourg Court, and nobody wants that to happen. There is considerable concern within the trade union movement, as expressed by the TUC, that the wording now before the House will not make things easier but rather a great deal worse, a great deal more complicated and a great deal more difficult for unions to comply with in situations such as the ASLEF case. That was not the original intention. The Government introduced the provision in the Bill because they were concerned to put into operation what was apparently required by the original decision in the ASLEF case before the ECHR. Therefore, I am not happy about the amendment. It will undoubtedly be endorsed by the House, in which case it will be up to the TUC to take it further by whatever means are available to it, including perhaps lobbying Members in the other House when the matter gets to the Commons.