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

On Second Reading, the Secretary of State promised to table amendments to ensure that unions could deal with political activists who pursue a racist or xenophobic political agenda. Our aim is to ensure that unions can deal effectively with far-right political activists who infiltrate their ranks and sow the seeds of hatred and intolerance. I believe that there is widespread support throughout the Committee for tackling this issue. A great deal of detailed scrutiny has gone into the preparation of the amendments. In particular, we carefully considered the human rights implications of changing the law, and new clauses 8 and 9 and amendments Nos. 59 to 65 all relate to the changes that we are introducing.

The main changes that we propose are contained in new clause 8. The new clause is quite complex, so it will take some time to describe how it works. The current law defines unlawful exclusion and expulsion from trade unions in section 174 of the Trade Union and Labour Relations (Consolidation) Act 1992 as amended, which sets various limitations on the freedom of unions to exclude and expel. Subsection (2)(d) to which the new clause refers is especially relevant to our deliberations today. It provides that unions are permitted to exclude or expel where such actions by the union are entirely attributable to the conduct of the person involved. Subsection (4) defines what conduct means. Importantly, subsection (4)(a)(iii) states that being, ceasing to be, having been or having ceased to be a member of a political party does not count as conduct.

The provisions have caused difficulties for unions when tackling the problem of political activists infiltrating their ranks. Let me describe two of them. First, it has not been clear what membership of a political party entails. In particular, unions and their advisers have been unsure whether any political activities that it might be possible to view as intrinsic to membership are covered by the expression ''membership of a political party''. That means that

it is unclear whether it is lawful to take measures against members who have been active in promulgating racist political policies. Case law is developing in this area, so it is fair to conclude that the current definition probably does not embrace many, if any, political activities. However, case law has not yet settled down, so some uncertainty remains.

Secondly, difficulties have arisen because cases involving conduct are frequently complex. There may be several reasons why a union chooses to act against an individual, and some reasons may be much more important than others. Some reasons may be given by an official or a committee, while other reasons are given elsewhere in a union's decision-making machinery. However, as the law is currently constructed, the union has acted unlawfully even if membership of a political party was a relatively minor reason for expelling or excluding someone. Therefore, if the union wanted to expel a leading activist of a political party who was prominent in the workplace and outside it, it might easily fall foul of the law if any of the officials involved in the decision to expel an individual had unwisely indicated that that individual should be expelled wholly or partly because they were a member of a political party. In other words, there is plenty of scope in the existing legal formulation for unions to make slight errors that result in an exclusion or expulsion being unlawful.

The new clause deals with those difficulties. Our objective is to provide unions with greater latitude when dealing with political activists. We also want to make the law clearer. To achieve those ends, the new clause creates two new categories of conduct for the purposes of section 174. First, it establishes the category of ''excluded conduct'', which is defined in subsection (4) of the new clause. The category includes all the types of conduct other than membership of a political party that are expressly mentioned in existing section 174 as falling outside the definition of conduct. Such matters include the behaviours for which it is unlawful for unions to discipline their members under sections 64 and 65 of the 1992 Act.

The second category is ''protected conduct'', which is defined at subsection (4A) of the new clause as

''being or ceasing to be, or having been or ceased to be, a member of a political party.''

Importantly, new subsection (4B) qualifies the definition by making it clear that political activities of any kind do not fall in the definition of protected conduct. In other words, such political activities constitute just conduct. The various elements are brought together at subsection (2) of the new clause, which sets out the tests for determining whether unions have the freedom to exclude or expel on grounds of conduct. It has various effects and I will mention some of those.

First, the provision ensures that any exclusion or expulsion attributable in any way, even to a small extent, to an ''excluded conduct'' is unlawful. That is the current situation. So, we wish to retain the existing

protections for the behaviours listed as excluded conduct. That also ensures that there is complete consistency between sections 65 and 174 of the 1992 Act.

Secondly, the provision ensures that, if protected conduct is the sole or main reason for an exclusion or expulsion, the union has acted unlawfully. We are therefore retaining the protections for passive membership of political parties. The right simply to belong to a political party is protected.

Thirdly, an exclusion or expulsion is lawful where it is entirely attributable to conduct that is neither excluded nor protected, because any form of political activity falls outside those two categories. It follows that a union is free to exclude an individual for his or her political activities, assuming of course that it complies with its own rules when it does so.

Fourthly, we have ensured that any exclusion or expulsion is lawful where a minor reason for it concerns protected conduct, but the main reason concerns other conduct outside the definition of excluded conduct. That means that a union will have acted lawfully if it expels a political activist principally on the grounds of their political activities where a subsidiary factor was the person's political party membership.

New clause 8 also changes the remedies for unlawful exclusion or expulsion. They are set out in section 176 of the 1992 Act. Under those provisions, an individual who an employment tribunal holds to have been unlawfully excluded or expelled may apply later for compensation. A minimum award applies where, at the time that the application is made, the union has not admitted or readmitted the individual. That minimum award is currently £5,900.

In cases where the union has failed to admit or to readmit the individual, the application for compensation is at present made to the Employment Appeal Tribunal. I will return to the division of responsibilities between the EAT and the employment tribunal when I discuss new clause 9. We believe that the minimum award of £5,900 is simply too high to apply to all cases. It is quite a substantial sum of money for the deserving and less deserving alike. We therefore think that the tribunal should be given greater discretion to decide the amount of the award. That is achieved in subsection (4) of new clause 8, which inserts a number of subsections into section 176 of the 1992 Act. In combination, the new subsections remove the £5,900 minimum in cases where the exclusion was unlawful because it was mainly attributable to protected conduct—namely, to membership of a political party—and the other reasons for the union's decision, wholly or mainly concerning conduct, were contrary to the union's rules.

That sounds complicated, so let me give an example. The union has expelled an individual on the grounds of both his political party membership and his party activities. The main reason was the person's membership. However, a contributory factor concerned the individual's engagement in political activities that were contrary to the union's rules. So,

the political activity was an important contributory factor but not the dominant one. Under new clause 8, the expulsion was unlawful, but the minimum award would not apply. If the union failed to readmit the individual, the tribunal would make an award that it thought ''just and equitable'', subject to the contributory fault attached to the individual.

New clause 9 changes an unusual feature of the law. At present, an application for compensation must be made to an employment tribunal.

See this speech in context