Mr Henry Bellingham (North West Norfolk, Conservative)

I beg to move amendment No. 13, in

clause 25, page 23, line 11, leave out 'or deterring' and insert 'him or taking action so as unreasonably to deter'.

Subsection (2) refers to the employer preventing or deterring an employee

''from making use of trade union services at an appropriate time, or penalising him for doing so''.

I do not know why it does not say ''him or her''; perhaps the Minister could comment on that.

My tidying-up amendment replaces ''deterring'' and inserts

''him or taking action so as unreasonably to deter''.

From a legal point of view, it is slightly clearer to change the wording in that way. Amendment No. 47 is not grouped with it, but there will be related points concerning it.

Mr Gerry Sutcliffe (Parliamentary Under-Secretary (Employment Relations, Competition and Consumers), Department of Trade and Industry; Bradford South, Labour)

Clause 25 stems from a 2002 judgment by the European Court of Human Rights in the Wilson and Palmer case. Clauses 23 to 26 ensure that we fully comply with article 11. Although there were differences on either side, there was common ground that we had to do something.

For many years, it has been unlawful for employers to take detrimental action against employees on the ground of their union membership or non-membership, or on the ground of taking part in union activities at an appropriate time. The effect of clause 25 as required by the Wilson and Palmer

judgment is to strengthen the protections against suffering detriment in section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992. Among other things, the clause adds the use of trade union services to the list of grounds on which an employer must not subject an individual to detriment, and this is important.

The Wilson and Palmer case concerned the relationship between union members and their union. That is a precious relationship, which is protected under article 11 of the European convention. Put bluntly, the judgment makes it clear that the law should not permit the employer to place themselves between the parties in that relationship by acting to block or to influence the dealing between individual members and their union. Such dealings can obviously embrace the use of the union's services, so we concluded, and there is common ground on this, that the law needed to spell out clearly the entitlements to use the services of the union. That thought finds expression in clauses 23 to 26 as well.

It is important to remember that the protections to use union services extend only to the use of such services at an appropriate time. That provides the necessary protection for employers, ensuring that there is no entitlement to use the services at times that would inconvenience the employer.

Section 146 already contains a definition of ''at an appropriate time'', which is amended by subsection (3), so that it applies in an appropriate way to the right to make use of trade union services. The effect is, and I paraphrase here, that the member is entitled to use union services in his own time or during working hours under an arrangement agreed with, or with permission given by, the employer.

The amendment adds a further condition at that point. It seeks to allow the employer to deter the union member from using such services at such times as long as it is reasonable for the employer to do so. Quite frankly, I cannot see the point of adding that qualification to the entitlement. Does the hon. Member for North-West Norfolk want the employer to interfere with the worker's use of his own time? Does he want to allow the employer to aim to go back on agreements he had reached with the worker or the union about accessing union services during working time? We do not want such effects. It undermines the protection and thus our compliance with article 11. At the very least it complicates the law unnecessarily, and it could give rise to uncertainty, confusion and dispute. The entitlements that I have discussed already provide ample safeguards to the employer, and show that business is not disrupted in any way. In the light of this explanation, I hope that the hon. Gentleman will withdraw his amendment.

Mr Henry Bellingham (North West Norfolk, Conservative)

I am grateful to the Minister for that explanation. I am glad that he has at least given the Committee a chance to hear his side of the story, and to explain why he does not like the amendment. I do not fully accept his arguments, but obviously in the light of what he has said and in the spirit of the co-operative mood of the Committee, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr Jonathan Djanogly (Huntingdon, Conservative)

I beg to move amendment No. 47, in

clause 25, page 23, leave out lines 30 to 37.

If the employer suffers the penalty for inducement, it seems bizarre that the worker should be able to receive the benefit of the illegal inducement for which the employer has been fined. The employee could happily do a deal with his employer and then hold the employer to ransom for three months before taking it to tribunal, at which the employer must prove that there was no inducement, and after which the company may be fined while the worker retains the benefit of the illegal deal.

That seems incomprehensible to me. It is unfair, illogical and totally contrary to any concept of harmonious industrial relations. Workers could effectively use the law to induce employers. In such a situation, the workers could win the tribunal award and get better contract provisions as well.

Mr John Lyons (Strathkelvin & Bearsden, Labour)

Does the hon. Gentleman accept that action should be taken against people who break the law? It would seem strange to think nothing of allowing someone who has broken the law to be let off scot-free. Surely, we have to consider that.

Mr Jonathan Djanogly (Huntingdon, Conservative)

The person who has broken the law—the employer, in this case—will get a fine of £2,500. We have argued about the fine, but that is where we are. However, the measure does stop there. Not only will the company be fined, but the illegal contract will remain. That does not seem to follow.

Mr Gerry Sutcliffe (Parliamentary Under-Secretary (Employment Relations, Competition and Consumers), Department of Trade and Industry; Bradford South, Labour)

Among other things, clause 25 introduces new rights not to suffer a detriment connected with trade union membership. They are introduced by subsection (4), and they work by inserting new subsections (2A), (2B), (2C) and (2D) into section 146 of the 1992 Act. As the hon. Member for Huntingdon will know, section 146 contains the existing rights on this issue. New subsections (2A) and (2B), which we have already discussed, deal with the right not to suffer a detriment for using union services. New subsections (2C) and (2D) deal with the right not to suffer a detriment for refusing an unlawful inducement as defined by proposed new sections 145A and 145B to the 1992 Act, which clause 23 introduces.

Amendment No. 47 would delete subsections (2C) and (2D) and, therefore, would remove the corresponding new right not to suffer a detriment. I hope that the hon. Gentleman will concede that there is a case for the introduction of that right. If a trade union member initially refuses an unlawful inducement, he could be put under pressure to accept it, or punished for ultimately refusing to accept it. He could be demoted, relocated to a less attractive workplace, refused promotion or given inferior work tasks, or he could suffer a deduction from his pay. There is no clear-cut protection under the law to prevent that from happening. It is unlikely that a union member is protected under the existing terms of section 146, especially as that section has been interpreted narrowly in the past. Therefore, it makes sense to make explicit provision to protect individuals

against such reprehensible behaviour by employers. Therefore, new subsection (2C) is both helpful and necessary.

New subsection (2D) makes it clear that a union member, to whom an inducement is not paid because he refuses it, suffers a detriment equal to the value of that inducement. As I explained in our debate on amendment No. 45, that arrangement ensures that a member who refuses an inducement is not treated worse than members who accepted it. To do otherwise would penalise those who refused the offer, possibly out of principle. The amendment would remove parts of the protection that are necessary to deter unacceptable employer conduct. That is the hon. Gentleman's point with this amendment. It is about unacceptable employer conduct. We think that it will be a fair regime. Therefore, I ask the hon. Member, on reflection, to withdraw his amendment.

Mr Jonathan Djanogly (Huntingdon, Conservative)

Having heard the Minister's reply, I have not changed my mind much on this matter but, on the basis that it is likely to be reconsidered later, I beg to ask leave to withdraw the amendment.

Amendment, by leave,withdrawn.

Question proposed, That the clause stand part of the Bill.

Mr Jonathan Djanogly (Huntingdon, Conservative)

In the previous stand part debate, I made three requests of the Minister, two of which relate directly to this clause, as I think he intimated in his response, so I shall make them again. My first question relates to the interpretation of the Wilson and Palmer case. The notes accompanying the Bill state the Government's belief that the principle underlying the Court's decision extends beyond the facts of the Wilson and Palmer case and is applicable to other, comparable circumstances. Will the Minister explain what those comparable circumstances are and why he believes that the Court's decision should be extended to them?

My second question relates to the definition of trade union services, which, according to proposed new subsection (2A)(a), means

''services made available to the worker by an independent trade union by virtue of his membership of the union''.

That is an extremely broad definition. Unions now pride themselves on the breadth of the services that they offer their members, from holiday travel packages to good deals on insurance. That is all to be welcomed and encouraged, but let us not forget that inducement means inducement not to use trade union services. Would inducement not to use the trade union's holiday travel package count as something for which an employer could be fined £2,500? The definition is so broad that it hardly makes any sense at all and certainly needs to be reconsidered. I shall be grateful to hear the Minister's view on that.

Mr Gerry Sutcliffe (Parliamentary Under-Secretary (Employment Relations, Competition and Consumers), Department of Trade and Industry; Bradford South, Labour)

I will do my best, but clearly the hon. Gentleman has a perverse view on the services that trade unions offer in the context of the spirit of the Bill and the ways in which we are trying to improve relationships in employment, so as to benefit

companies, individuals and the trade unions that represent them. He said that we had gold-plated the European Court's judgment, but that is not true. As I have said, we listened to the arguments put to us in the consultations and have tried to ensure that we remain within the framework of article 11. Through the spirit that we have tried to engender in the Bill, we feel that we have made the responsibilities clear, although that is open to interpretation and there are arguments from all sides about where the Government have finished up.

The scope of trade union services includes those things that trade unions offer to their members in the world of employment and other things. The definition is clear but we must consider it in the context of what we are trying to achieve in the clause, which has to be set against that judgment.

Mr Jonathan Djanogly (Huntingdon, Conservative)

The Minister's explanatory notes say that the Government have applied the Wilson and Palmer case in a broader context than the Court. I should be interested to hear what explanation the Minister can offer for that decision and what representations he received.

Mr Gerry Sutcliffe (Parliamentary Under-Secretary (Employment Relations, Competition and Consumers), Department of Trade and Industry; Bradford South, Labour)

Whatever I say, the hon. Gentleman will not agree, so I would probably be wasting both my time and the Committee's time by explaining our position. The consultation focused on the details of the judgment, in the context of the Bill and in the spirit of our attempt to meet the requirements of all parties relating to that judgment. The consultation was conducted in the spirit of employment relations today. That spirit was different in the days of the Wilson and Palmer case, when the hon. Gentleman's party, which has a different philosophy of dealing with industrial relations, was in power. We have tried to ensure that we support the position as fairly and clearly as possible, so that employers, unions and individuals know where they are. As I said earlier, however, I hope that the provisions will not apply in too many cases, because the spirit that we are trying to engender is different from that which prevailed when the problem first arose.

Mr Jonathan Djanogly (Huntingdon, Conservative)

The Minister has still not answered either of my questions, but let us put our discussion about the European Court of Human Rights to one side for the moment, because we have reached a dead end. Will he confirm that the clause would not apply if the company induced the employee to take up a holiday travel package that it was offering and to reject the union's travel package?

Mr Gerry Sutcliffe (Parliamentary Under-Secretary (Employment Relations, Competition and Consumers), Department of Trade and Industry; Bradford South, Labour)

That would not be in the spirit of what we are trying to achieve. The definition of trade union services is fair, and I am sorry that the hon. Gentleman does not believe that I have answered his points. As I said at the start, nothing that I could say would answer them, and I cannot take the matter any further.

Question put and agreed to.

Clause 25 ordered to stand part of the Bill.