Employment Bill [HL]

My Lords, with some trepidation, I support the amendment to Clause 18, which stands in the names of the noble Lord, Lord Jones of Birmingham, and my noble friend Lord Lester of Herne Hill. As I said at Second Reading, support for this has been reciprocated on all sides of the House. I am standing in for someone who is regarded as, if not one of the world’s experts on human rights, certainly one of the UK’s experts on human rights; he is very sorry that he cannot be in his place today. However, as a result of the negotiations that he and others had with the Government, he was delighted to put his name to the amendment. I know that if he were here he would also have liked to have thanked the noble Lord, Lord Morris of Handsworth, who he feels has been instrumental, with him, in producing the amendment before us today. Before the Minister speaks, perhaps we should go back a little and remember what the amendment and the debate on this clause are about. I think that I am right in saying that it is common ground that we are under an obligation to implement in our legislation the ECHR decision in Aslef. I say that I think that it is common ground because I know that it is common ground on the other side of the House and it is certainly common ground on the Liberal Democrat Benches but, many weeks ago in the Moses Room, there was a moment when I thought that the Tory Opposition were flirting with the concept that we are under no obligation to legislate, in breach of the various treaties that the British Government have signed and which have been endorsed by every Tory Government of which I am aware. The noble Lord, Lord Henley, might have suggested that, but I do not think that he continued with the argument, so I suspect that we are on common ground on all sides of the House that we are under an obligation to implement or to put into our law the result of the Aslef case. The noble Lord, Lord Morris of Handsworth, put it clearly when he said that, in taking the heat out of this, the Government went out to consultation on whether to go to solution A or solution B. The original clause had solution A, which I know that the TUC supported—it did not have to have its tanks on the Government’s lawn at that stage. The amendment before us is a form of option B, so we are really talking about a straight choice between option A and option B. It will be of no surprise to noble Lords that from these Benches, as articulated until today by my noble friend Lord Lester of Herne Hill, we have always been in favour of option B, for the reasons that the noble Lord, Lord Morris of Handsworth, gave. I ask Members opposite who have had their reservations about this: do they really not accept that proposed new subsection (4G) is not the way that any responsible trade union would conduct itself? Do they really accept that anyone can be expelled if, "““the decision to exclude or expel is taken otherwise than in accordance with the union rules””?" Do they really accept that someone can be expelled from a trade union if, under subsection (4G)(b), "““the decision to exclude or expel is taken unfairly””," for all the reasons given by the noble Lord, Lord Morris of Handsworth? I understand the argument about subsection (4G)(c), which is the exceptional hardship provision, because the TUC position ably articulated by the noble Baroness, Lady Turner, is: why should we include that when we no longer have the closed shop? I know that I speak for my noble friend Lord Lester of Herne Hill and others on these Benches when I say that we cannot necessarily foresee circumstances under which, "““the individual could lose his livelihood or suffer other exceptional hardship by reason of not being ... a member of the union””." That is a fail-safe provision, which it is prudent to have in the Bill. Two objections came from the noble Baroness, Lady Turner, who reflected the views of the noble Lord, Lord Campbell of Alloway. The first was that in some way, were we to adopt option A and have the original Clause 18, that would magically reduce the opportunity for litigation. I just do not see that. I do not see that if someone had been dismissed in ways not according to the union’s rules or if someone had been dismissed because the decision had been taken unfairly, that would mean that that person would put his hands up and say, ““That’s fine, they went for option A, therefore I can do nothing about it””. I have read the briefings from other firms of solicitors. I do not see the argument that somehow going for the original Clause 18 would reduce the opportunity for litigation if the conditions under which the individual had been expelled were listed in paragraphs (a), (b) and (c) of subsection (4G). I do not accept that argument. As for the point made by the noble Lord, Lord Borrie, about the definition of a political party in Clause 14, to take the remarks made by the noble Lord, Lord Morris of Handsworth, and speaking as an ex-lawyer, I do not think that it will take Thompsons or other firms long to draft a rule book that gets round the issue of the BNP changing its name. I can see how to do it. If anyone wants me to, I will go outside and spend five minutes drafting it, but I suggest that we leave that to Thompsons. In the mean time, I am happy to support the amendment.