Clause 18

Employment Bill [Lords] – in a Public Bill Committee at on 16 October 2008.

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Exclusion or expulsion from trade union for membership of political party

Photo of Jonathan Djanogly Jonathan Djanogly Shadow Minister (Business, Innovation and Skills), Shadow Solicitor General, Shadow Minister (Justice), Shadow Solicitor General 1:00, 16 October 2008

I beg to move amendment No. 17, in page 17, line 41, at end add—

‘(4) In section 177 (interpretation and other supplementary provisions) after subsection (2) there is inserted—

“(2A) For the purposes of section 174 an individual will only be considered to be a member of a political party if within the 12 months prior to the date of an individual’s application for membership of the trade union that individual was registered with the political party as a member.’.

Photo of Martin Caton Martin Caton Labour, Gower

With this it will be convenient to discuss amendment No. 18, in page 17, line 41, at end add—

‘(4) In section 177 (interpretation and other supplementary provisions) after subsection (2) there is inserted—

“(2A) For the purposes of section 174 a group will be considered to be a political party only where it has been registered with the Electoral Commission under the Political Parties, Elections and Referendums Act 2000 (c. 41) or any foreign equivalent, and at the time of the individual’s application for membership of the trade union the party remains on such a register.’.

Photo of Jonathan Djanogly Jonathan Djanogly Shadow Minister (Business, Innovation and Skills), Shadow Solicitor General, Shadow Minister (Justice), Shadow Solicitor General

We are still on clause 18 and we are looking at ways in which more security can be put into the clause to protect the rights of employees. Amendment No. 17 aims to limit how far back into a member’s past a trade union is entitled to look to find reasons to exclude or expel. I accept that this is a question of balancing interests proportionately and in a common-sense fashion. However, the views and opinions that we hold in our youth are often bred of some degree of naivety and optimism for the world and those who inhabit it. Likewise, youthful ideals may have made some of us intolerant of others, but with time, some people change. Their views change and actions are adapted.

For instance, we must all accept that membership of the Campaign for Nuclear Disarmament as a student in the 1960s should not automatically enable a 50-year-old to be expelled from a trade union that represents workers in the nuclear industry. Without great caution, it seems that this could be extended further. What happens if an over-zealous parent had a teenage child signed up to an extreme party membership? Should the beliefs of the parent be used to punish the son? Of course not.

This provision seems at odds with a person’s human rights. The amendment seeks to address the wrong by saying that the party membership must have been within the last 12 months. My hon. Friend the Member for  Northampton, South made a powerful case, albeit slightly earlier than he was meant to, as to how unacceptable it would be for his party membership some years ago to be taken into account now. He may wish to come back and finish his remarks.

Amendment No. 18 goes to the definition of a political party. I have previously stated how we view this clause as an attack on civil liberties in many ways, but that we recognise the need to address the issue by virtue of the European convention on human rights. As things stand there is no definition of a political party in the Bill, so we need to ask at what point a person’s political views constitute membership of a political party. If someone votes for the Socialist Workers party, or strongly or openly espouses some of its views, but is not a member of that party, could that person be banned from union membership? This is why we see the key issue as being conduct, not party membership. This whole area could be a recipe for disaster.

Furthermore, to all hon. Members who are worried about the British National party today—I agree that we all need to be worried—I say that they are missing the wood for the trees. We should keep in mind that the right hon. Member for Holborn and St. Pancras (Frank Dobson) supported the original legislation here in order to protect communists and their fellow travellers from being hounded out of unions. The hon. Member for Broxtowe made the same point in relation to a German union.

We can talk about countering the BNP but we should not think that this legislation is necessarily the format to use. Many other organisations could be caught in the net. Given the position we find ourselves in, we need to regulate carefully who will be caught in the definition of political party. That is why we suggest that we limit the expulsion right to members of political parties that are registered. When a similar amendment was moved in another place, the Minister noted that the employee may belong to a foreign party. The amendment now caters for that eventuality.

Perhaps the amendment’s drafting is not perfect, but I find it difficult to believe that the Government will be unable to draft an appropriate definition of a political party. When we come within the wide parameters of democracy, the spectrum of beliefs is very broad and the question is where we draw the line and who draws it. While exclusion for membership of the BNP may seem reasonable, at what point do we stop? Baroness Miller said:

“Could, for example, a union involved with workers in the nuclear or coal-mining industry exclude a member of the Green Party?”—[Official Report, House of Lords, 7 January 2008; Vol. 697, c. 671.]

I fear that we may end up with trade union witch hunts in which hon. Members who show even the slightest diversion from a party line find themselves out on their ear. The Orwellian undertones are frighteningly apparent in their potential.

Secondly, once splits appear along political lines, how soon will it be before we see the internal fragmentation of trade union membership? What will stop those with differing political leanings from creating their own splinter groups? Increasingly, politics is an issue-driven playing field. The traditional affiliations of parties have been blurred and the electorate has become a more homogenised group as the parties head to the middle ground. That  will present further problems should trade unions be able to bar membership on the basis of membership of the Countryside Alliance, Greenpeace or Amnesty International. How are we to categorise such groups? Are they political parties for the purposes of this Bill? As the fractures materialise, there could be further claims. We will then end up back here debating the same points after another slap on the wrist from Strasbourg. For those reasons, I am happy to move the amendment.

Photo of Nick Palmer Nick Palmer PPS (Malcolm Wicks, Minister of State), Department for Business, Enterprise & Regulatory Reform

I want to raise a few points on the amendments. First, we have a briefing from Thompsons Solicitors, which acted for ASLEF in the court case that has given rise to this particular piece of legislation. It is critical of clause 18 as a whole, but its argument is slightly different from the ones mentioned so far. I will relate it to the amendment under discussion. Its concern is that even if a union could exclude members of the BNP, the party could change its name or have a slightly different variant every year to evade the exclusion. I am not sure how realistic that is because in practice, any serious political party would find it very difficult to change its name every year.

The same difficulty arises with amendment No. 18 in which the hon. Gentleman seeks to limit the exclusion to parties that are officially registered. However, the overtly neo-Nazi group Combat 18, which seeks to prepare for racial war, is not a registered political party. It stretches tolerance to the point of insanity if we say that we should force trade unions to associate with members of a group that is preparing for racial war. The issue is not really whether it is a political party as defined in the amendment, but whether we should enable trade unions to draw the line somewhere in a reasonable manner.

With regard to the hon. Gentleman’s point about limiting the period of membership to 12 months, I have to declare an interest. I was a communist when I was young, although I was not a party member. I was quite open about it. I can imagine a situation in which that could be used against me professionally—outside my current profession perhaps.

The provision about fairness is relevant. Proposed new subsection (4G)(b) requires that any decision be taken fairly. In my case, the involvement was 40 years ago. Reference was made to the possibility of the parents being involved. Any court would rule in practice that such an association had long lapsed and that it was not fair within the meaning of the common law to use it against the individual.

In today’s society, trade unions are voluntary associations of people who come together for a common cause. It is open to anyone to form a separate trade union. The hon. Gentleman suggested that there was a danger that someone might do so under the Bill. Well, the BNP has already set up the trade union, Solidarity, for people who do not wish to be part of the TUC. It has a right to do that. As long as the party is legal, I do not have a problem with it setting up its own trade union. It is a reasonable solution to the problem.

As long as being a member of a particular trade union does not carry with it significant career and financial implications—it does not under the Bill—it  should be a matter of freedom of association to allow people to join unions whose objectives are similar to their own. It is reasonable to allow unions to exclude people whose objectives conflict directly with their own, in the same way that I might have difficulty were I to apply to join the Conservative party.

Photo of John Hemming John Hemming Liberal Democrat, Birmingham, Yardley

The principle in amendment No. 17, which is that only trade union membership in the immediate year before or during the membership period should matter, is reasonable. It is the drafting that is problematic. I understood the amendment to apply only to membership of a political party during the 12-month period prior to applying to be a member of a union, so if someone was a member of the union and then joined the party that would disqualify them, that would not count. I cannot back the drafting of the amendment, but its principle is good.

Amendment No. 18 is also good because that again refers to a form of conduct, but membership of a political party or standing for a party is a definable act. The Committee knows that I am sympathetic with the underlying principle of freedom of association. I have no problem with that. As the hon. Member for Broxtowe explained, people can take other routes if they do not like that one. The principle of amendment No. 17 is good, even if the wording needs to be sorted out. Amendment No. 18 is very good.

Photo of Natascha Engel Natascha Engel Labour, North East Derbyshire

I am sure that some of my lawyerly friends will speak more about the matter, but an arbitrary 12-month period in which lawyers will have to prove that someone has been a member of a political party for 12 months prior to applying to be a member of a trade union seems completely unenforceable. It would take for ever to prove how long someone has been a member. Was it from when they filled in the application form? Was it from when the application form arrived? It seems completely mad to have something so specific, when we are talking about much broader principles in respect of freedom of association, and membership of political organisations and trade unions. I should like an explanation of the provision.

Photo of Brian Binley Brian Binley Conservative, Northampton South

I support the clause wholeheartedly. I wish that it went further. It does not, so I shall speak to the amendment itself. I do not like the fact of making decisions that are based on a person’s association, particularly with a political party. Parties are broad churches and for a trade union to be able to assume that it can take such action, be it to take into account membership of a political party for 12 months or otherwise, seems to be a dangerous premise.

Photo of Michael Jabez Foster Michael Jabez Foster Labour, Hastings and Rye

Has the hon. Gentleman noted the wideness of the BNP’s policies? I have not noted them to be in any way integrationary or prepared to consider having members of different creeds unless they maintain the white supremacy rule. That is not the sort of party that most trade unions want to have in their path.

Photo of Brian Binley Brian Binley Conservative, Northampton South 1:15, 16 October 2008

I will be delighted to answer that. My record of standing up against the BNP is second to none. I do not like any implication that it might not be, and I will not accept it.

Photo of Brian Binley Brian Binley Conservative, Northampton South

Hang on. I will finish the answer to the question, which I found frankly offensive. Many good people in this country—this point has been raised—were members of the Communist party at a time when Stalin was killing 16 million people. Are we to say that, because of that association, they should not be members of the Law Society, of a trade union or indeed of any organisation with an impact on employment? I would argue that that is not the case, but my point is that we should be dealing with the individual and the individual’s characteristics, not with what might be said about the people with whom they associate. Freedom of association is an important factor in that respect too, and it seems to me that the balance struck has not taken that perspective into account. I argue for all our freedoms in that respect, and I would have hoped that the hon. Gentleman would see that to be the case.

I am also concerned that the amendment, which I will support as the lesser of evils, recognises that when dealing with such membership, a person’s association can be noted rather than their own standing and beliefs, recognising that political parties are broad churches. That could swing round and hit all of us where it hurts if we are not careful. The thin end of the wedge, in that respect, is dangerous. Before I am questioned again, I repeat that I have stood alongside my colleague the hon. Member for Northampton, North (Ms Keeble) when we were threatened with a BNP march, waiting for them to come to the station. The whole ethos of the British National party horrifies me, as does much of the ethos of the Communist party.

My point is about judging an individual on his own worth, not on the basis of association, which we all choose for good or bad. There are a number of things that I do not like about the Conservative party, but I make a decision. I am sure that there are lots of things that the hon. Gentleman does not like about the Labour party, but one makes a decision. Let us judge a person on his individual character and views, not on the groups with which, for one reason or another, he might associate himself.

Photo of Pat McFadden Pat McFadden Minister of State (Department for Business, Enterprise and Regulatory Reform) (Employment Relations and Postal Affairs), Member, Labour Party National Executive Committee

These two amendments deal with the issue of when someone is a member of a political party and the definition of a political party for the purposes of the clause. Were the amendments to be passed, those definitions would of course apply across all the various subsections of section 174 of the Trade Union and Labour Relations (Consolidation) Act 1992.

Amendment No. 17 deals with the definition of party membership in terms of time. The amendment would limit trade unions’ ability to expel or exclude people by requiring the unions to disregard any party membership that ended more than a year—

Photo of Hugo Swire Hugo Swire Chair, Speaker's Advisory Committee on Works of Art

Will the Minister indulge those of us on the backest of the Back Benches by speaking up a little bit, so that we can catch every word?

Photo of Pat McFadden Pat McFadden Minister of State (Department for Business, Enterprise and Regulatory Reform) (Employment Relations and Postal Affairs), Member, Labour Party National Executive Committee

I am happy to speak more loudly, although I was trying to calm the Committee down after the last exchange.

As I said, the amendment involves disregarding any party membership that ended more than a year before the person applied to join a trade union. The issue was also raised in the other place when the Bill was discussed there. I appreciate what is being said with genuine feeling in the Committee about freedom of belief and the important principle enshrined in that. We all hold that dear. The judgment that gave rise to the legislation was about balancing the freedom of such belief with freedom of association and the rights of union members to have a view on with whom they wished to associate. So, there is a balance of freedoms here. The judgment concluded that unions should be free to decide, in accordance with their rules, questions concerning admission and expulsion.

I shall quote from the judgment, as I did this morning. The judgment noted that unions often hold particular views. Paragraph 39 states:

“Article 11 cannot be interpreted as imposing an obligation on associations or organisations to admit whosoever wishes to join. Where associations are formed by people, who, espousing particular values or ideas, intend to pursue common goals, it would run counter to the very effectiveness of the freedom at stake if they had no control over their membership.”

We as political parties have some control over membership. In my party, over the years, we have expelled people for various crimes. I remember that particularly a couple of decades ago, when I was starting out in politics and party membership. Of course there has to be due process, natural justice and so on, but it is not beyond the bounds of reason that a collective organisation, such as a party or trade union, could expel or exclude an individual. The judgment was drawing attention to that kind of balance.

Photo of Brian Binley Brian Binley Conservative, Northampton South

I make the point that when ASLEF appealed its case it was for a member who had been expelled because he was a member of the BNP at that time. Indeed, if that were the case in point, that is fine—there is protection there. My concern in this respect—although I understand that my concerns overall are stand part arguments—is that there is no time limit to all of this. In given instances, the union can be vindictive and victimising just as much as an employee can. It is the time frame that allows that to happen, and not the actual membership. If the provision was restricted to membership, I would understand it more, but if the union has an open-ended option to take action on the basis of what is said to be a given history, I find that much more difficult to accept.

Photo of Pat McFadden Pat McFadden Minister of State (Department for Business, Enterprise and Regulatory Reform) (Employment Relations and Postal Affairs), Member, Labour Party National Executive Committee

I shall come on to the issue of former membership. I understand the hon. Gentleman’s point. In the case of former members, it may be that someone’s views remain exactly the same, even though they are no longer a member of a particular political party. It may be that their views have changed. Either case could be true. In the latter case, provisions in clause 18(2)—the  proposed new subsections (4G) and (4H) of section 174 —would apply. Those provisions require a trade union to act in accordance with its rules; they say that there should be “a fair opportunity” to make representations, which should be “considered fairly”. That is, precisely, the natural justice point made by Lord Morris of Handsworth that I quoted this morning. If, for example, someone had had a brief flirtation with an extremist party in their youth, many years before, as the hon. Member for Huntingdon said could be the case, but that this was very different from their views today, that would be properly considered under the protections and provisions in the clause.

There is a further point. The effect of the amendment would be that anyone joining the BNP or a similar organisation after they had joined the union would be in a position where it would not be legal to expel them, because the emphasis of the amendment is on the 12-month period before joining the union. In practical terms, there is a significant problem with the amendment, apart from the fact that it seems to be based on a lack of recognition of the protections that have been built into clause 18.

I refer to the points made by my hon. Friend the Member for North-East Derbyshire, who said that the amendment would result in unions being expected to know the dates when individuals were registered as a member of a party when even the parties themselves may not know that.

Photo of Mary Creagh Mary Creagh PPS (Rt Hon Andy Burnham, Secretary of State), Department for Culture, Media & Sport

We had a debate on Tuesday about the difficulties that enforcement officers have in acquiring records and copies of documents from employers. Does the Minister agree that the amendment would place an onerous imposition on trade unions if they were expected to go into the headquarters of the BNP and ask for its membership records, and does he think that the records would be up to date or freely given to trade unionists?

Photo of Pat McFadden Pat McFadden Minister of State (Department for Business, Enterprise and Regulatory Reform) (Employment Relations and Postal Affairs), Member, Labour Party National Executive Committee

That illustrates the practical problems associated with accepting the amendment. As my noble friend Lord Bach said, it would result in trade unions and a member in such a position playing cat and mouse, and a process that could produce a platform for vexatious actions. As I have said all along, this is delicate territory and we have to proceed with care and caution. That is why safeguards have been built into the clause that take account of the issue raised by the hon. Members for Northampton, South and for Huntingdon about a youthful flirtation that was left behind many years before.

I would also like to say a few words about amendment No. 18, which seeks to provide a definition of “political party”. We do not believe that it is necessary. The statutory provisions limiting the ability of a trade union to exclude or expel persons for their party membership were first introduced in 1993. No definition of political party was thought to be needed at that time, and there has been no evidence since then that not including a definition in the legislation introduced by that Government has caused a problem.

I should also point out that although including registration with the Electoral Commission in a definition of a political party would cover most parties, it would not cover every political party in the country. Emerging parties or parties that do not stand for election in their  own name do not need to register. That is precisely the territory that we are talking about with extremist organisations.

There is also a difficulty with the foreign aspect. It is true that it was discussed in the other place, but how can we assume that every other country has equivalent registration systems? I doubt that that is the case. Again, the amendment would create practical hurdles that unions would find well nigh impossible to overcome.

Photo of Nick Palmer Nick Palmer PPS (Malcolm Wicks, Minister of State), Department for Business, Enterprise & Regulatory Reform

Following up on my point about Thompsons Solicitors, would the Minister agree that, in practice, a trade union would be able to have a rule to exclude members of parties with a racialist ideology, or something general, rather than specifying a particular name?

Photo of Pat McFadden Pat McFadden Minister of State (Department for Business, Enterprise and Regulatory Reform) (Employment Relations and Postal Affairs), Member, Labour Party National Executive Committee

My hon. Friend is right to draw me back to his point. I draw his attention to subsection (2):

“Conduct which consists in an individual’s being or having been a member of a political party”.

It does not say that the union must specify in the rule book the exact name of the political party. That also came up in the other place, where on behalf of the Government Lord Bach said:

“Membership need not be of that political party but of any political party whose values contravene the union’s rules or objectives.”—[Official Report, House of Lords, 2 June 2008; Vol. 702, c. 28.]

Photo of Michael Jabez Foster Michael Jabez Foster Labour, Hastings and Rye

My reading of subsection (2) is that that is where the problem lies, because, to refer to it more fully, it says:

“Conduct which consists in an individual’s being or having been a member of a political party is not conduct falling within subsection (4A) if membership of that political party”.

The reference to “that political party” seeks to provide a particular rather than a more general definition.

Photo of Pat McFadden Pat McFadden Minister of State (Department for Business, Enterprise and Regulatory Reform) (Employment Relations and Postal Affairs), Member, Labour Party National Executive Committee 1:30, 16 October 2008

My reading of the provision is that that reference relates to the political party mentioned above. I hesitate to differ with hon. Members who have good legal knowledge, but our view is that it does not require the specification of named political parties in the union rule book. I think that that is at the heart of my hon. Friend’s concern.

Photo of Brian Binley Brian Binley Conservative, Northampton South

Therein lies the concern. The Minister said that someone should not be banned because of a youthful flirtation. We have all had youthful flirtations in one way or another, but they are not matters for debate today. To quote Paul on the way to Damascus, a person can change his belief on an action instantly. It seems to me that therein lies the problem, because someone who was a member of the British National party, the Communist party, the Nazis or God knows what else that we might find abhorrent may decide that they no longer believe in that. That is why I argue that the issue should be an individual’s view, not their association.

I do not understand why the matter cannot be cleared up by saying that if an individual’s views clash with the constitution of a trade union, that individual cannot be a member. I cannot see that the issue is association. Will the Minister explain why many members of the Labour party who support me in Northampton were adamant  that they would support Tony Blair five years ago? People change their minds. The issue is not time. Time is an instant.

Photo of Martin Caton Martin Caton Labour, Gower

Order. Interventions are becoming rather long, and sometimes are off the subject.

Photo of Pat McFadden Pat McFadden Minister of State (Department for Business, Enterprise and Regulatory Reform) (Employment Relations and Postal Affairs), Member, Labour Party National Executive Committee

The hon. Gentleman asks why the provision is about membership of a political party. That was the nature of the case that was taken to the European Court. As the hon. Member for Huntingdon said, since 1993, capacity has been in place for a union to expel or exclude someone on the basis of conduct. The change in clause 18 arises from that case, and refers to membership of a political party. The Government’s task, and our task as a Parliament, is to try to find a clause that matches the requirement imposed on us by the European convention judgment, but also does that in a way that preserves natural justice for the individual. That is what we have tried to do through clause 18.

If I may return in seriousness to the point about youthful flirtation, the safeguards that we have built in for representations to be made, considered and so on will provide ample opportunity for someone to say, “That was a long time ago in my youth.” I cannot understand why a trade union would want to expel or exclude someone in such circumstances.

Photo of Natascha Engel Natascha Engel Labour, North East Derbyshire

The ASLEF v. Lee judgment is unusual, and the circumstances hardly ever arise. We are trying to legislate for an eventuality that does not happen often, and we must recognise that the circumstances would be extreme.

Photo of Pat McFadden Pat McFadden Minister of State (Department for Business, Enterprise and Regulatory Reform) (Employment Relations and Postal Affairs), Member, Labour Party National Executive Committee

I agree with my hon. Friend. As I said this morning, unions are recruiting members and trying to attract people, not rooting through their lists trying to get rid of people.

Photo of Barry Gardiner Barry Gardiner Labour, Brent North

The hon. Member for Northampton, South said that this matter should be about an individual’s views rather than membership of a party. Perhaps he should walk down the corridor and look at that wonderful painting of Queen Elizabeth I, where she is saying that she has no desire to make a window into men’s souls. The individual view is private, whereas membership of a party is a public representation of certain views and an expression of them. That is an important distinction. The hon. Gentleman would not want a Big Brother state that inquired into what each of us privately thought, any more than I would. Going down that route would be very dangerous.

Photo of Pat McFadden Pat McFadden Minister of State (Department for Business, Enterprise and Regulatory Reform) (Employment Relations and Postal Affairs), Member, Labour Party National Executive Committee

My hon. Friend makes the point well and more eloquently than I could. I am drawing to a conclusion. I talked about the difficulties of finding where foreign political parties were registered and so on.

Photo of John Baron John Baron Opposition Whip (Commons)

The hon. Member for Brent, North made an excellent point that, in turn, argues against the legislation as a whole. The legislation  seeks to do exactly what he referred to—make a window into men’s souls, and judge somebody on their beliefs rather than their conduct.

Photo of Pat McFadden Pat McFadden Minister of State (Department for Business, Enterprise and Regulatory Reform) (Employment Relations and Postal Affairs), Member, Labour Party National Executive Committee

I thought that this quarrel among Conservative Front Benchers could be sorted out. It happens with every amendment.

The hon. Member for Huntingdon, whom I believe is also the shadow Solicitor-General, told us that his party’s position is to legislate in line with ECHR judgments. Twice, the hon. Member for Billericay has indicated that he does not wish to do so, and objected in principle to the legislation being introduced at all.

Either the Conservative party believes in legislating in line with ECHR judgments or it does not. If it does, as the hon. Member for Huntingdon, the Front-Bench spokesperson, said, the issue is about how we can meet that judgment. If it does not, that is a significant departure, which has been mentioned twice by the hon. Member for Billericay and which will be noted. The Conservative party must make up its mind.

Photo of John Hemming John Hemming Liberal Democrat, Birmingham, Yardley

I take issue with one of the assertions made by the hon. Member for Billericay. The decision to join a political party is a conscious decision to do just that. It may or may not express views. I would not wish to see legislation based on expressing views, but this matter is about the conscious act of joining a political party and the freedom of association.

Photo of Pat McFadden Pat McFadden Minister of State (Department for Business, Enterprise and Regulatory Reform) (Employment Relations and Postal Affairs), Member, Labour Party National Executive Committee

As I said in response to the hon. Member for Northampton, South, the judgment was about membership of a political party.

Finally, I draw the Committee’s attention to the difference between exclusion and expulsion. Expulsion would be when someone was already a member of a trade union, and exclusion when someone was not a member but sought to join. In that sense, amendment No. 18 might be problematic as it seems to deal only with the exclusion of those seeking union membership. If a political party were established after an individual joined a trade union, I am not sure whether that would be covered.

In summary, I stress again that this is delicate territory, but the amendments go well beyond what is required to comply with the judgment. They could make it impossible for trade unions to use the powers in clause 18, even when in line with the safeguards set out in the clause, which cater for instances such as those quoted during the debate. On that basis, I hope that the Opposition will not press the amendment.

Photo of Jonathan Djanogly Jonathan Djanogly Shadow Minister (Business, Innovation and Skills), Shadow Solicitor General, Shadow Minister (Justice), Shadow Solicitor General

The judgment was certainly about membership of a political party. Amendment No. 18 defines what constitutes a political party. Would anyone who heard this debate have a clear idea as to what constitutes or is likely to constitute a political party? I do not think so. I submit that there will be court cases based on what constitutes a political party.

The hon. Member for Broxtowe gave a thoughtful speech, using the example of Combat 18. We have to ask whether that is a political party or just a movement. That is highly debateable. Does hanging out with the same group of people in a particular place without a membership card make one a member of a political party? Does a group all wearing a T-shirt saying “Combat  18” constitute a political party? On what basis is a member of Combat 18 a member of a political party? Another example that comes to mind is the Militant Tendency, which it called itself a newspaper rather than a political party. That was a highly debateable point. We could debate it again today.

My point is that we are creating legislation that will lead not to less review and fewer court cases, but to more. We have seen that organisations such as the BNP are quite prepared to go to court and test this kind of thing. Do not think that this will be the end of it. Our suggestion is that we must tie the matter down.

Photo of Pat McFadden Pat McFadden Minister of State (Department for Business, Enterprise and Regulatory Reform) (Employment Relations and Postal Affairs), Member, Labour Party National Executive Committee

The point about the potential for litigation is important and valid. My point is that the kind of extra conditions contained in the amendments would be likely to give more grounds for litigation to the people that the hon. Gentleman is worried about.

Photo of Jonathan Djanogly Jonathan Djanogly Shadow Minister (Business, Innovation and Skills), Shadow Solicitor General, Shadow Minister (Justice), Shadow Solicitor General

I disagree. If someone is a member of a registered political party, that is a lot more certain than anything else that we have discussed. I appreciate that the amendments might not be perfect. If the Minister were to come up with other suggestions, we would be prepared to discuss them.

As the hon. Member for Broxtowe said, a party could change its name, but that is unlikely. The more popular political parties are unlikely to want to change their names regularly. He also said that one of the advantages could be that BNP members would end up going into their own unions. I do not wholly agree with that as a valid course of action. It smacks of the Italian fascist corporatist unions. Although this is not directly relevant to the debate, I do not think that that would be an effective way to negate BNP or fascist action in this country.

On the arbitrary 12-month period, if the hon. Member for North-East Derbyshire thinks that it should be two or three years, we are prepared to discuss that. In principle, the idea that someone can be excluded from a union or anything else because of something that they were involved in 20, 30 or 40 years ago is conceptually wrong and unfair.

Photo of Natascha Engel Natascha Engel Labour, North East Derbyshire

The hon. Gentleman is trying to legislate for something that I do not think will ever happen. The idea that a trade union might be purely vindictive and get rid of somebody because 40 years ago they were a member of such-and-such an organisation just will not happen.

Photo of Jonathan Djanogly Jonathan Djanogly Shadow Minister (Business, Innovation and Skills), Shadow Solicitor General, Shadow Minister (Justice), Shadow Solicitor General

I assure the hon. Lady that in Nazi Germany a person’s membership of the Communist party 20 or 30 years previously may well have been taken into account in deciding how they were dealt with. Such treatment is therefore conceptually possible. As to whether it has happened in this country, I do not have any proof. Is it conceptually possible? Is it a fear that as legislators we should be looking at? I think it is.

Photo of Natascha Engel Natascha Engel Labour, North East Derbyshire

The point is that we do not live in Nazi Germany. If we are legislating on the basis that we are living in Nazi Germany, we should start all over again.

Photo of Jonathan Djanogly Jonathan Djanogly Shadow Minister (Business, Innovation and Skills), Shadow Solicitor General, Shadow Minister (Justice), Shadow Solicitor General

I see myself as a guardian of democracy in this country, and I hope that all of us do to some extent.

Photo of Michael Jabez Foster Michael Jabez Foster Labour, Hastings and Rye 1:45, 16 October 2008

Is it not the case that Nazi Germany did not have proposed new subsection (4H), which will impose reasonableness? With respect to the hon. Gentleman, any of those bizarre examples, such as someone who was a member 20 or 30 years ago, would be unreasonable unless their conduct had been different in the meantime.

Photo of Brian Binley Brian Binley Conservative, Northampton South

Does my hon. Friend agree from his history lessons—I lived through it—that vindictiveness occurred in the union movement consistently in the 1970s? Before saying that it did not, one should talk to many of my friends who fought that battle in Nottinghamshire and other parts of the country. It may happen again, and we need to be aware of that when we are writing law. We are not writing law for a week or a month; we assume that we are writing law for a long time indeed, and we must take that into account.

Photo of John Hemming John Hemming Liberal Democrat, Birmingham, Yardley

Does the hon. Gentleman agree that the price of liberty is eternal vigilance and that our role is to ensure that the laws operate properly and protect people against vindictive actions? Although I would disagree with him on this occasion in valuing the right of voluntary association where a person does not suffer any disadvantage as an important issue to be taken account of, it is our responsibility as hon. Members to protect the freedoms of the people of this country.

Photo of Jonathan Djanogly Jonathan Djanogly Shadow Minister (Business, Innovation and Skills), Shadow Solicitor General, Shadow Minister (Justice), Shadow Solicitor General

I agree that eternal vigilance is certainly one of our duties as legislators. The ban is based on being a member of a political party—we are agreed on that.

Another thing came to mind as the Minister was making his remarks. I argued, as others have been arguing, that a person’s views may change over time, but there is another aspect: over 20 or 30 years, the political party’s views may change as well. The Conservative party of 30 or 40 years ago is not the Conservative party of today, so it is not only people’s views but parties’ views that change. What might have been a racist party might not be after 30 or 40 years, and vice versa.

The more we look at the legislation, the more we see holes in it and ways in which it will be challenged. What we have seen in the other place and what we will, I hope, see today is an Opposition who say, “Yes, we appreciate that the legislation is necessary, but we are not quite happy with where we are at the moment,” or “What we have is not going to work,” and we have been producing different ways forward. It would be helpful if the Government gave some thought to how such points could be firmed up, so that we could return to it at a later stage.

Photo of Nick Palmer Nick Palmer PPS (Malcolm Wicks, Minister of State), Department for Business, Enterprise & Regulatory Reform

The hon. Gentleman has gone some way to persuading me that there is a difficulty in the political party definition. I am not sure whether he is raising it as a practical objection or as part of a wish to constrain the activity of trade unions. My conclusion is that we should perhaps replace the term with “political association or movement”—in other words, draw the definition more widely. His approach of limiting it to parties defined in the Bill would work.

Photo of Jonathan Djanogly Jonathan Djanogly Shadow Minister (Business, Innovation and Skills), Shadow Solicitor General, Shadow Minister (Justice), Shadow Solicitor General

I have said openly, as has my hon. Friend the Member for Billericay—the Minister tried to create some sort of difference between us on this—that conceptually, we do not like the legislation. We do not like the clause; we are concerned about its overall impact on civil liberties. However, we respect the ECHR and realise that it is our starting point. We are not trying to overturn the ECHR decision and certainly not the ECHR, which was the extra world that we got into. We are where we are, and we have made our point. I will go away, look through the Hansard report of today’s debate and think again about how we can review the amendments before the Bill is considered on Report, because we will certainly want to raise that issue again. In the meantime, we are willing to discuss it with the Minister and hope that there will be movement on it before Report. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

Photo of Michael Jabez Foster Michael Jabez Foster Labour, Hastings and Rye

I must confess a prejudice. My prejudice is against the BNP—there are some other political parties that I do not like either, but I forgive them. The BNP are an obnoxious bunch, and many hon. Members agree. Fascists, like chameleons, change their appearances. My first concern is how unions can clearly define the sorts of organisations that are contrary to their purpose, although my hon. Friend the Minister has dealt with this point to some extent. I am grateful to him for defining the point about the term “political party” being wide enough so as not to be too prescriptive in excluding or including groups that are contrary to the purpose of trade unions.

I do not understand why trade unions should not be able, in the main, to do as they want—political parties do. If one cannot join political parties in some parts of the country—that is not so much the case these days but certainly was in the past—that creates detriment. As political parties, we can decide who we want in our membership, and if someone has already joined a party whose views are inconsistent with ours, we do not have to take them on. Even the Fabian Society states that one must not be ineligible for membership of the Labour party, which means that one cannot be a Tory, because one cannot be a member of the Labour party if one is a Tory party member. Those sorts of thing seem to be obvious.

It seems perfectly proper that voluntary organisations should be able to exclude people who are not their fellow travellers. My worry is that that might still be too restrictive. We now know that the ECHR has decided that the right to association by the unions will, in all but one situation, lead to that having prominence over the human rights of the individual. The exception to that is  laid out in proposed new subsection (4G), to which the Minister referred this morning, in cases where

“the individual would lose his livelihood or suffer other exceptional hardship”.

The loss of livelihood could never occur now because there are no longer such things as closed shops, so I am not sure what the exceptional hardship could be. I cannot think of an example in which exceptional hardship could be imposed on anyone simply because they could not join the club. This morning we heard all sorts of examples of inconvenience, such as not being able to go on holiday in the west country and losing the right to free legal advice, but exceptional hardship seems to be such a test that it is almost inconceivable that simply losing one’s union membership could be so described, and we discussed that earlier.

Furthermore, the other issues set out in the new clauses that the House of Lords suggests are imposed make me worry about the possibility of significant litigation on some issues. An example is the business of the reasonable practicality of knowledge. What is the reasonable practicality of knowing whether the union had brought a policy that the new member did not know about? The test in proposed new subsection (4D) creates a test of reasonable practicality in the knowing of the objectives—it looks like a minefield. A BNP member might well find a fellow traveller who is happy to come along and say that he did not know about the objectives of the union. What will happen? Is the trade union to bring a bus-load of shop stewards and say that everybody should know about it if they turn up to their branch meetings? I just do not know why it is all necessary.

I have not tabled an amendment this afternoon. The Minister has worked really hard to strike the right balance in the Bill, and whatever he does, there will be people who will disagree with him—he has a tough job and I congratulate him on his efforts. As far as I can see, however, the bottom line is that the ECHR has made clear its point that under very rare circumstances only—exceptional hardship, for example—a trade union might be unable to expel someone. Unless he knows of other such circumstances and if all the other provisions are simply window dressing designed to comply with what the House of Lords said, will he reconsider whether the provisions are necessary? Would it not be just as simple to return to the drafting in the original Bill? Might that not serve his purposes well and do what he has been trying to do throughout the Bill, which is to simplify and clarify employment legislation, so that the employee—the union member, in this case—knows precisely what is intended? Perhaps the BNP will not even bother to join unions in which they are not welcome.

Photo of John Hemming John Hemming Liberal Democrat, Birmingham, Yardley

Most of my points have been dealt with during the discussion on the amendment. The debate is primarily about freedom of association, voluntary association and people’s right to decide not to associate with certain other people. I would share hon. Members concerns if we tried to legislate on that within statutory organisations.

Photo of Natascha Engel Natascha Engel Labour, North East Derbyshire

I apologise for not having said what a delight it is to serve under your chairmanship, Mr. Caton—it is, of course. I declare an interest in that, before I was elected to Parliament, I worked as the trade  union liaison officer at the Labour party and, after that, with trade unions organising their political fund ballots, so I understand unions and how they work. They are very broad churches, beyond even what has been said here today. I remember working quite closely with people in unions and workplaces who were members of other political parties. Before I did that job, I was a trade union organiser.

Photo of Stephen Crabb Stephen Crabb Conservative, Preseli Pembrokeshire

On the hon. Lady’s point about trade unions being broad churches, is that not borne out by the fact that the majority of trade union members voted Conservative in 1983, 1987 and, I think, at the last election?

Photo of Natascha Engel Natascha Engel Labour, North East Derbyshire

I cannot comment on that, because I do not know the facts. Trade union members are members of lots of different political parties, and everybody who calls themselves a democrat should support that. Although I would say that a working person’s rights are much better represented by the Labour party than by any other party, I would still die in a ditch for their right to join any other political party, if that is what they wanted to do. We are overlooking that important fact. Trade unions are very broad churches. The circumstances that we are legislating for are very rare.

Photo of Brian Binley Brian Binley Conservative, Northampton South

Having been a trade unionist, I understand the hon. Lady’s point. I was a member the Union of Shop, Distributive and Allied Workers and worked for the co-operative movement in the bank, as I have said before. However, although the unions are very reasonable at the moment, they have not been in the past—for example, when a specific group took hold of a region or branch and caused havoc. Havoc was caused to members of the Labour party, let alone to members of other parties, whether Conservative or Liberal. Does she recognise that we must write law with that possibility in mind? That is what the debate is about.

Photo of Natascha Engel Natascha Engel Labour, North East Derbyshire 2:00, 16 October 2008

I do not entirely disagree, but the hon. Gentleman must also recognise that that is just politics. It might be a bit annoying and sometimes really painful, but havoc is politics—and legitimate politics, too, even if annoying. We must also recognise the difference between serious extremism, which the hon. Gentleman was so passionately angry about, and xenophobia and racism, both of which the BNP, as a political party, represent, which we all hate fundamentally and which are, importantly, fundamentally anti-democratic. The mainstream political parties, as well as trade unions, are democratic organisations. Again, that is another point that we must recognise.

We have also recognised in our debates, in terms of freedom of association and freedom of speech, that there are big political parties and trade unions. Those points have been raised time and again during our sittings. Freedom of association and freedom of speech are fundamental to democracy, and we all support those things. It is important to remember that this is about members in membership organisations—trade unions and mainstream political parties—having the right and the ability collectively to determine the rules  of those organisations, as well as collectively to change them. Extremism absolutely undermines those democratic principles.

If a trade union or a political party decides collectively that it finds extremist views unacceptable—not just in principle, but as part of the ethos of the organisation—it should be within the rights of those organisations to expel people with those views. As my hon. Friend the Member for Hastings and Rye said, if no hardship is suffered as a result—there is no longer a closed shop—that should be within the rights of those organisations.

As the hon. Member for Northampton, South mentioned earlier, if an individual’s beliefs run so contrary to the organisation—in this case, a trade union—that they undermine everything that it represents, he or she should go. I support their going. The proposal is trying to enshrine in law the ability for a trade union or other organisation to get rid of a person if the organisation has collectively decided and judged that they are contrary to everything that it represents. Another fundamental point is that the ECHR’s decision on this matter was all about transparency and the ability to do that within trade union rules. That is all that I want to say about that. The clause supports all the things that we have been talking about today. Most members of the Committee agree that these are fundamental democratic principles.

Photo of Pat McFadden Pat McFadden Minister of State (Department for Business, Enterprise and Regulatory Reform) (Employment Relations and Postal Affairs), Member, Labour Party National Executive Committee

My hon. Friend the Member for Hastings and Rye is right on one point—whichever way people move on this issue, somebody is ready to tell them that they have gone too far or not far enough. That goes with the territory. To govern is to choose. Our responsibility is to try to get this right.

The thrust of the amendments is that there should be more conditions. The question is whether we have gone too far in respect of this power, and that is the judgment that we have had to make all the way through. I said in my first comments this morning that the Government changed our view as the debate went on in the other place. We canvassed two options—a broader option, to which the hon. Gentleman is encouraging us to return, and an option broadly in line with the clause as it is now. On balance, we have taken the view that although both those options would meet the legal requirement to legislate in line with the ECHR judgment, we should give unions the power that the judgment recommends. However, there was also a strong case for due process and safeguards in the exercise of the power, and that is what the clause tries to do. Hon. Members on both sides of the Committee will have their views on whether it does so perfectly.

Photo of John Baron John Baron Opposition Whip (Commons)

I appreciate that the Government are not in an easy position and that finding the right compromise is difficult, but will the Minister, for the sake of clarity, give us his definition of a political party?

Photo of Pat McFadden Pat McFadden Minister of State (Department for Business, Enterprise and Regulatory Reform) (Employment Relations and Postal Affairs), Member, Labour Party National Executive Committee

For me, a political party is the kind of organisation that I joined. It is no more necessary to define that now than it was when the hon. Gentleman’s party introduced the 1993 provisions and felt no need to enshrine such a definition in law.

Photo of John Baron John Baron Opposition Whip (Commons)

For the purposes of the Bill, some regard clearly has to be given to the term, “political party”. Will the Minister give us his definition of that term?

Photo of Pat McFadden Pat McFadden Minister of State (Department for Business, Enterprise and Regulatory Reform) (Employment Relations and Postal Affairs), Member, Labour Party National Executive Committee

I am not sure why the hon. Gentleman feels that it is more necessary to define that term today than it was when the Government whom he supported introduced their legislation, which made a distinction between party and conduct that had not been in previous legislation.

We should not lose sight of the safeguards, which we have discussed one by one and which are set out in proposed new subsections (4G) and (4H). They state that a decision to exclude or expel should be taken in accordance with the union’s rules and that it should not be done unfairly. We have been over the point about exceptional hardship. “Fairness” is defined as notice of the proposal to exclude or expel being given to the person with reasons and there being a fair opportunity to make representations, which should then be considered fairly. Most of us would recognise that as being due process that allows somebody a legitimate voice in a decision of this kind. This is delicate territory. We have to legislate with care and caution, and we should do so in line with the Court’s judgment. The Government have always taken the view that it was right to bring our legislation into line with that judgment. As the debate has progressed in the other place and in Committee, we have concluded that it is right to do so in this legislation, with the safeguards that I mentioned enshrined there.

Question put and agreed to.

Clause 18 ordered to stand part of the Bill.

Clauses 19 and 20 ordered to stand part of the Bill.