Clause 18
Employment Bill [Lords]
9:25 am
Jonathan Djanogly (Shadow Minister, Business, Enterprise and Regulatory Reform; Huntingdon, Conservative)
I beg to move amendment No. 19, in clause 18, page 17, line 27, leave out ‘other exceptional hardship’ and insert ‘any material financial disadvantage’.
We move on to the part of the Bill dealing with trade union membership. This is not the first time that I have spoken of my concerns about the clause, and I fear that it may not be the last. The clause embodies the conflict between two fundamental civil liberties: the freedom of association and an individual’s right of political belief unhindered by arbitrary interference by public authorities. For that reason, we must ensure that the clause is debated to the fullest extent and that arguments both for and against are carefully examined.
The bar on trade unions excluding or expelling individuals from membership is set out in section 174 of the Trade Union and Labour Relations (Consolidation) Act 1992 as introduced by section 14 of the Trade Union Reform and Employment Rights Act 1993. The section was subsequently amended in considerable detail by the Employment Relations Act 2004, and the changes made it clear that it was lawful for trade unions to exclude or expel individuals on the grounds of their political party activities. I was on the Committee that considered that legislation and recall the debate in which we went with the right for unions to end membership on grounds of conduct but not of belief. Despite the best efforts of this House and the other place when passing that legislation, the balance of the competing rights of the individual and of the trade unions was knocked somewhat out of kilter by the decision taken in Strasbourg by the European Court of Human Rights in ASLEF v. UK. Conservative Members accept that decision, although we do not like it.
For the sake of brevity and to save the Committee from a discussion on a judgment that many hon. Members will no doubt be well acquainted with, I will note only the barest bones of the details of the case. Mr. Lee, for 10 years a member of the British National party, applied for and was accepted into membership of ASLEF. Three months later, ASLEF received a report about Mr. Lee alleging not only that he had stood for the BNP in local authority elections but that he had been engaged in racist conduct. He was expelled by ASLEF and took his case to an employment tribunal, alleging breach of section 174 on the ground that he was expelled not for his conduct but for his membership of the BNP. The tribunal upheld his claim. However, ASLEF appealed to the European Court of Human Rights. The Court’s assessment of section 174 led it to the conclusion that trade unions should be given greater scope to exclude or expel members on the basis of political party membership alone. In essence, the Court said that section 174 as it stands interferes with ASLEF’s freedom of association under article 11 of the European convention on human rights. Under article 4 of the convention, an obligation is placed on the United Kingdom to comply with the judgment of the Strasbourg Court and adopt amending legislation, and that is what today is all about.
First, I want to express the Conservative party’s deep unease with the decision in the ASLEF case. To our mind it marks a further erosion of personal civil liberties by an organisation with a remit that is meant to protect them. What a topsy-turvy world we live in when a court of human rights is reining in the freedoms of an individual to be a member of a recognised political party. Secondly, it seems that the Strasbourg decision was affected by the fact that the BNP member’s job was not put at risk by his union expulsion, which would be the case if, for instance, there had been a closed shop. It seems that there is yet room for this area of law to be developed further.
As the Committee will be aware, following the European Court of Human Rights decision, the Government’s consultation paper of May 2007 suggested two options for the amendment of the existing legislation. Option A, which was initially used in the Bill when it was presented in another place, proposed a broad amendment to section 174 which would make it lawful for trade unions to expel or exclude on the basis that political party membership activities were unacceptable to them. That provided much greater autonomy to the trade unions in deciding their membership. The vast majority of the 33 consultation respondents were in favour of that option, but that may have had something to do with the fact that 26 of them were trade unions.
Option B, we thought, was the more constrained and sensible option, containing safeguards against abuse. It was proposed in the other place by the Liberal Democrats and received our support. The Government are to be commended for their eventual decision to go with that option.
The two options were discussed at some length in the other place, as were almost all aspects of the clause. I will not rerun those debates. However, I will draw out some key points that it is important to reiterate. We support the decision to use option B. To my mind, the likely consequences of option A on trade union autonomy are difficult to swallow. I fail to see how giving arbitrary powers to trade unions to bar membership would result in less litigation, as was originally suggested by the Government.
Any legal challenge under option A, which would undoubtedly arise given the BNP’s tendency to grandstand in the courts on these issues, would be made a common-law breach of union rules and decided on the arbitrary nature of the rules. That could take us back 30 years to the days when trade union rules were seen as quasi-legislation that the court had to interpret, rather than as a contract between the union and its members.
We believe that the statutory safeguards in option B are far safer and more democratic because Parliament, rather than the courts, will set the parameters. With that in mind, we believe that option B is the correct method, or at least the best of the available choices. The provisions set out that trade unions should not exclude or expel members
“otherwise than in accordance with the union rules”
or by a decision that is unfair. Option B, as it appears in the Bill, will ensure a test of proportionality to some degree. Such measures are the yardstick for any decision about an individual. Openness and transparency of the criteria must be applied and there must be fairness in the application of the facts.
As I said, the Conservative party thinks that the clause requires further refinement if it is not to harbour the possibility of unfairness. I apologise for my somewhat lengthy introduction, but without putting them in context the amendments would not have made sense.
Amendment No. 19 has its roots in the ASLEF decision in the ECHR and the need to safeguard individual rights. The ECHR decision was that Mr. Lee had not suffered
“any particular detriment, save loss of membership itself in the union”.
Indeed, it went on to conclude that he lost nothing
“in terms of his livelihood or in his conditions of employment”.
While that was not the turning point of the case, it was a significant point raised by the Court. There is enough indication, however, that in other circumstances the Court may have been persuaded that there had been sufficient detriment to a claimant for a decision to go in his or her favour. Although the UK employment market is no longer blighted by the closed shop, this aspect of the decision opens a rich vein of opportunity for claims to be made by the BNP and others.
This important amendment was provided by the Liberal Democrats in the other place. Its aim is to ensure that appropriate statutory safeguards are put in place to prevent the abuse of the clause. Furthermore, such safeguards would prevent the courts from being unduly forced to prevent abuse by trade unions and deal with the corresponding litigation.
Under the amendment, a trade union would not be able to expel or exclude a person from membership if the result would be to inflict a “material financial disadvantage” on the individual. The Bill uses the term “exceptional hardship”, which while an improvement on the original concept of “hardship” alone, is too broad to act as a consistent measure of hardship. I share Lord Lester’s concern that without a more clearly defined and qualified concept of “hardship”, the ambiguity of the term could lead to court cases. We need to spell out a clear and concise measure so that that cannot happen.
Therefore, with reference to proposed new subsection (4G)(c), I submit that a criterion of “exceptional hardship”, with all its associated problems, as the Government showed in the other place, is perhaps too opaque a phrase for the purpose. I instead propose “material financial disadvantage” as the safeguard to be included in the clause.