Employment Bill [HL]

My Lords, the very last thing that anyone on the government Front Bench would want to do is to offend the noble Lord in any way in these matters. That was certainly no one’s intention. The noble Lord also asked us to have regard to his amendments, although he has not moved them this afternoon. I assure him today that we certainly will. My noble friend Lord Borrie suggested that the government amendment was tabled during the recess. Actually, it was not; it was tabled on Thursday 22 May, which is the day on which we went into recess. Noble Lords will remember that Report was on Monday 19 May. We worked very hard, or at least my officials did, to get the amendment into a workable form before the recess. The convention, if not the rule, suggests that Third Reading government amendments should be tabled well in advance, so we tabled it on Thursday 22 May. I wrote a letter to noble Lords with the amendment, and I can only apologise that it did not arrive sooner. I thought that I had made it quite clear that those letters should be got to noble Lords as soon as possible, and I can only regret that they were not. I particularly regret that today is the very first day on which noble Lords have had sight of this significant amendment. The amendment was forecast on Report, but of course looking at the amendment itself is what is important. As I said, it was laid down on 22 May. It could not have been tabled any quicker. On the other amendments, I shall try to deal with the points that have been made in what has been an extensive debate. The noble Lord, Lord Henley, moved Amendments Nos. 4 to 6, which seek to prevent trade unions being able to exclude or expel on the basis of former membership of a political party. Our stance has not changed, I am afraid. We think that that would place a further limit on the freedom of trade unions to set and apply their rules, and therefore run contrary to the thrust of the ECHR judgment. The noble Lord said on Report that he was opposed to trade unions being able to expel or exclude on this basis, even if an individual had only recently resigned his or her membership. This would provide scope for infiltration of trade unions by those who hold objectives and views which are incompatible with those of the union. It is easy to foresee a situation in which a BNP member resigns his membership on learning of a union’s intention to expel him only to rejoin once the threat of expulsion has passed. This cat-and-mouse cycle could continue indefinitely, imposing a significant administrative burden on the union and producing a loophole for vexatious action. This amendment would substantially frustrate the ability of trade unions to expel or exclude on the basis of political party membership and is, we think, contrary to the spirit of the ECHR judgment. It is interesting that the Joint Committee on Human Rights, in its consideration of how best to respond to the judgment, also included expulsion or exclusion on grounds of former membership. We understand the argument that individuals change their political beliefs and accept that this can be done genuinely, wholeheartedly and with none of the malicious intent that I have just mentioned in my example. I am equally certain that trade unions accept this, too. Unions are in the business, as has been said, of recruiting members, and they will not seek to deny membership to those who have genuinely changed their views. Indeed, there are a number of well known examples of that happening. We have to remember that unions still need to follow fair procedures when expelling someone on the grounds of their former membership. The government amendment ensures that an individual has a fair opportunity to make representations and that those must be considered fairly by the trade union. This gives ample scope for that person to show that they no longer hold the same political beliefs. Amendment No. 7, also in the name of the noble Lord, Lord Henley, is similar to an amendment that was tabled on Report. It seeks to define what type of organisation qualifies as a ““political party””. We maintain our position at Report. We should be wary of introducing new wording to this legislation which is not strictly necessary. As I pointed out then, no definition of what constitutes a political party has existed in relation to these provisions, which were first introduced in 1993. As far as I am aware there have been no problems at all as a result. No problems were mentioned either in this debate or on the previous occasion. The amendment would also create a serious problem. By defining a ““political party”” as only those that are registered within the UK, the amendment would exempt from this legislation the many members of British trade unions who are foreign nationals. I am delighted to be able to repeat that those numbers are increasing. Some of those individuals will be members of political parties in their own countries. While I am sure that the majority of those parties will have objectives that are entirely compatible with membership of a trade union, it is a fact of life that political extremism is found in all countries. Trade unions must be free to take action against such individuals while adhering to the general safeguards that our amendment provides. That is why the Government cannot support Amendment No. 7. Perhaps I may turn to other comments made during this interesting debate. I say to the noble Lord, Lord Campbell of Alloway, that the government amendment to Clause 18 strikes that balance between the competing Article 11 rights that the ECHR was so concerned about. Our amendment makes that clear. I am very grateful to my noble friend Lady Turner for her part in these debates. She spoke of breach of contract. There is no new ability for individuals to bring a claim for breach of contract as a result of our amendments. It has always been possible under option A—what Clause 18 looks like at the moment—for an expelled individual to bring a claim for breach of contract if a union breached its own rules in expelling him. However, an excluded individual never had a claim for breach of contract. This amendment provides additional safeguards for excluded individuals, which is absolutely in line with the recommendations of the Joint Committee on Human Rights. My noble friends Lady Turner and Lord Borrie asked whether we felt that option B is compatible with the judgment of the European Court. We are confident that it is. As I have just said, the JCHR suggested a similar amendment to the one we have moved today. My noble friend Lady Turner argued that our amendment would make it harder for trade unions to expel or exclude on these grounds, but under current law trade unions cannot simply expel or exclude on the grounds of political party membership. Therefore Clause 18 as amended gives trade unions more freedom than they currently possess. My noble friend Lord Hoyle talked about the role of the certification officer and raised the issue of using that officer as a remedy. The certification officer is a useful route for individuals who may have a complaint, but it is not available for exclusions, only for expulsions because the role of the officer is limited. My noble friend also said that he wanted to keep cases out of the courts. In fact the remedy for someone who is excluded would have to be through the employment tribunal. Lastly, I turn to the point made by my noble friends Lord Borrie and Lady Turner about unions needing to identify and proscribe political parties in their own rules or objectives. We have thought about this and we do not think that it is necessary. We believe that general rules or objectives about the union’s political beliefs or attitudes, stating what it favours or what it dislikes, such as fascism or extreme xenophobic political parties, should suffice. Likewise, non-political rules relating to anti-racism or cultural pluralism may be used to show that membership of an extreme political party is contrary to the union’s rules or objectives. Membership need not be of that political party but of any political party whose values contravene the union’s rules or objectives. We believe that trade unions in this country play a crucial part in protecting the rights of workers and we have put into effect, as we were bound to do, the ASLEF judgment. That judgment gives trade unions greater freedom than now to exclude or expel members whose political party membership is in opposition to the union’s political beliefs. So this is a sensible step forward in terms of giving trade unions the extra power which the court said that they should have. There is a genuine disagreement about which of the two options should be adopted, and that disagreement has been debated in this House from day one of the Bill. The Government have come to the view that our amendment is the right way to pursue this.