As amended in the Public Bill Committee, considered.
New Clause 1
Protection of those participating in lawful industrial action or a lawful strike
‘(1) The Trade Union and Labour Relations (Consolidation) Act 1992 (c. 52) (in this section “the 1992 Act”) is amended as follows.
(2) For section 238A (participation in official industrial action) substitute—
“238A Effect of industrial action on employment contract
(1) Any termination of a contract of employment by an employer shall be unlawful and of no effect if the reason or one of the reasons was or is that the worker has participated, is participating or proposes to participate in lawful industrial action or a lawful strike; and in any proceedings, the termination shall be presumed to be by reason of that participation or proposed participation unless the employer proves the contrary.
(2) Where in any proceedings a court finds a termination unlawful as a result of subsection (1), it may (in addition to making any other order)—
(a) make a declaration as to the continuation of the contract of employment;
(b) award damages in respect of any loss suffered by the worker by reason of the termination.
(3) Where a worker’s act or failure to act is a consequence of the worker’s participation, or proposed participation, in lawful industrial action or a lawful strike, that act or failure to act is not actionable on any of the following grounds—
(a) that it amounts to a breach of that worker’s contract of employment, or to non-performance or partial performance of one or more terms of that worker’s contract of employment;
(b) that it amounts to the breach, non-performance or partial performance of any duty or obligation owed by the worker to any person; or
(c) that it is directly or indirectly causative of the breach, non-performance or partial performance of any duty or obligation owed by another person.
(4) For the purposes of this section, section 238AA and section 238AB, an employee participates in lawful industrial action or a lawful strike if he commits an act, or a series of acts, which he is induced to commit by an act which by virtue of section 219 is not actionable in tort.
(5) In this section—
(a) “court” includes an employment tribunal, and
(b) “termination” includes a purported termination.
238AA Unfair dismissal and the right not to suffer detriment
(1) An employee who is dismissed shall be regarded for the purposes of Part X of the Employment Rights Act 1996 (c. 18) (unfair dismissal) as unfairly dismissed if the reason or one of the reasons for the dismissal is that the employee has participated, is participating or proposes to participate in lawful industrial action or a lawful strike.
(2) A worker has the right not to be subjected to any detriment by any act, or deliberate failure to act, by his employer, where the reason (or one of the reasons) for the act or failure is that the worker has participated, is participating or proposes to participate in lawful industrial action or a lawful strike.
(3) Subsection (2) does not apply where the worker is an employee and the detriment in question amounts to dismissal.
(4) Nothing in this section prevents an employer, in relation to a worker who participates in lawful industrial action or a lawful strike, from—
(a) withholding remuneration or benefits from the worker, so long as—
(i) the amount withheld does not exceed that to which the worker would have been entitled had he not participated in industrial action or a strike,
(ii) the withholding of the remuneration or benefits in question is permitted by the worker’s contract of employment, and
(iii) it is reasonable in all the circumstances to withhold the remuneration or benefits in question;
(b) enforcing, to such extent as is reasonable in the circumstances, any restriction imposed by the worker’s contract of employment concerning trade secrets or other confidential information.
238AB Complaints to employment tribunals etc
(1) A worker or former worker may present a complaint to an employment tribunal that he has been subjected to a detriment by his employer in contravention of section 238AA(2).
(2) An employment tribunal shall not consider a complaint under subsection (1) unless it is presented—
(a) before the end of the period of three months, beginning with the date of the act or failure to act (or the last in a series of similar acts or failures) to which the complaint relates, or
(b) within such further period as the employment tribunal considers just and equitable in all the circumstances.
(3) In proceedings on a complaint under section 238AA(2), it is for the employer to show the reason for the act or failure to which the complaint relates; and the act or omission shall be presumed to be by reason that the worker had participated, was participating or proposed to participate in lawful industrial action or a lawful strike unless the employer proves the contrary.
(4) Where an employment tribunal finds that a complaint presented to it under subsection (1) is well founded, it shall take such of the following steps as it considers just and equitable—
(a) make a declaration as to the rights of the complainant in relation to the matters to which the complaint relates;
(b) order the employer to pay such compensation to the complainant as it considers just and equitable having regard to all the circumstances, including the detriment to which the worker was subjected and any loss suffered by the worker in consequence of the act or omission to which the complaint relates; and for the avoidance of doubt, compensation may be awarded in respect of injury to feelings whether or not awarded under any other head.
(5) In proceedings on a complaint of unfair dismissal under section 238AA(1), the dismissal shall be presumed to be by reason that the worker had participated, was participating or proposed to participate in lawful industrial action or a lawful strike, unless the employer proves the contrary.”
(3) In section 239 (supplementary provisions relating to unfair dismissal) subsection (4) ceases to have effect.
(4) The Employment Rights Act 1996 (in this Act, “the 1996 Act”) is amended as follows.
(5) After section 113 (reinstatement and re-engagement orders) insert the following section—
“113A Automatic reinstatement
Where an employment tribunal finds that an employee has been unfairly dismissed in circumstances to which section 238AA(1) of the Trade Union and Labour Relations (Consolidation) Act 1992 applies, and the complainant wishes to be reinstated, the tribunal shall make—
(a) an order for reinstatement, or
(b) an order for re-engagement on such terms as the parties may agree or as the tribunal (having regard to any advice received from ACAS) shall order”.
(6) In section 117 (enforcement of order and compensation) after subsection (2) insert the following subsection—
“(2A) In relation to an order made pursuant to section 113A, the amount of compensation shall be such as the tribunal thinks just and equitable in all the circumstances having regard, in particular, to the nature of the infringement of the employee’s right to be reinstated or re-engaged in pursuance of the order, and to any loss suffered by the employee in consequence of the non-compliance; and for the avoidance of doubt, compensation may be awarded in respect of injury to feelings whether or not it is awarded under any other head.”
(7) In section 117 after subsection (8) insert the following subsection—
“(9) Any order for reinstatement or re-engagement made pursuant to section 113A may be enforced as if it were an order made by the High Court.”
(8) In section 124 (limit of compensatory award etc)—
(a) after “section 117(1) and (2)” insert “or (2A)”;
(b) for “section 115(2)(d)” substitute “section 115(2)(d), section 117(2A)”.
(9) In section 128(1)(b) (interim relief pending determination of complaint) after “Trade Union and Labour Relations (Consolidation) Act 1992” insert “or section 238AA(1) of that Act”.
(10) In section 129(1) (procedure on hearing of application and making of order) after “Trade Union and Labour Relations (Consolidation) Act 1992” insert “or section 238AA(1) of that Act”.’.—[John McDonnell.]
Brought up, and read the First time.
With this it will be convenient to discuss the following: new clause 2—Employer’s duties in relation to industrial action ballots—
“The following section is inserted after section 226C of the Trade Union and Labour Relations (Consolidation) Act 1992—
“226D Employer’s duties in relation to industrial action ballots
(1) It is the duty of an employer reasonably to co-operate generally, in connection with a ballot conducted or proposed for the purposes of section 226, with the trade union (or unions) and the person appointed to conduct the ballot.
(2) Without prejudice to the generality of subsection (1), it is the duty of an employer to supply to a trade union in good time information reasonably requested by the trade union for the purposes of establishing the names, addresses, categories and workplaces of those members whom it wishes to ballot for the purposes of section 226.”.’.
New clause 3—Agency labour replacing those taking lawful industrial action—
“In the Conduct of Employment Agencies and Employment Businesses Regulations 2003 (S.I. 2003/3319), after regulation 7 (restriction on providing work-seekers in industrial disputes) insert the following regulation—
“Restriction on hirers in industrial disputes
7A (1) A person shall not hire a work-seeker to perform—
(a) the duties normally performed by a worker who is taking part, or intends to or is about to take part, in a lawful strike or other lawful industrial action, and in respect of whom notice of a strike or other industrial action has been given by a trade union (“the first worker”), or
(b) the duties normally performed by any other worker employed by the hirer and who is assigned by the hirer to perform duties normally performed by the first worker (whether or not the employer is contractually entitled to require the other worker to perform those duties).
(2) Where a person seeks to become the hirer of a work-seeker wholly or partly by reason of (or of the prospect of) a strike or other industrial action, that person shall, before being supplied with a work-seeker by an employment business, inform the employment business of that fact.
(3) Paragraphs (1) and (2) shall not apply if, in relation to the first worker, the strike action or other industrial action in question is an unofficial strike or other unofficial industrial action for the purposes of section 237 of the Trade Union and Labour Relations (Consolidation) Act 1992.
(4) In this regulation and in regulation 7, “employment business” includes an agency.”.’.
This is now a time-limited debate, and I am anxious to ensure that we deal with all the important issues scheduled for debate today, so I shall try to be as brief as possible. I shall speak about new clauses 1, 2 and 3, but I shall seek a ballot—pardon the pun; I meant a Division—on new clause 2, on balloting procedure, at the appropriate time. I shall be advised by you on that, Mr. Deputy Speaker. I seek to press it to a Division following consultation with hon. Members and a range of trade unions, who feel that new clause 2 is the most important new clause in the batch before us. It relates to the largest impediment to their activities and to good industrial relations.
This is my third attempt to debate the new clause. My first two attempts were on clauses in the Trade Union Rights and Freedoms Bill, but both times the debate was talked out. I am grateful for the advice and assistance of the Clerk to the Committee, which helped us to ensure that the new clauses were in order, and could be selected today. I also pay tribute to the Institute of Employment Rights for its tenacious pursuit of trade union rights, and its advice and assistance. In particular, I pay tribute to Carolyn Jones, John Hendy QC, and Professor Keith Ewing. I also pay tribute to the late Brian Bercusson. Together, as a team, they have provided support throughout the last two decades in trying to seek trade union reform and establish basic trade union rights once again in this country. May I also pay tribute to the many trade unionists who have campaigned on these issues over the years and lobbied Parliaments? They include many rank and file trade unionists, general secretaries and others: we all owe them a debt of gratitude for campaigning for basic trade union rights in this country.
The three new clauses are extremely moderate and could hardly be described as burdensome reforms in vital areas of trade union rights. They are supported by every trade union affiliated to the TUC, they are unanimously supported by the TUC general council and they have been unanimously supported by the TUC for at least three years. My concern is that they are more important now than before. As the country moves into a recession, there is always a danger that unscrupulous employers will use the excuse or the smokescreen of recession to seek to undermine wages and conditions under which workers are employed and even to shed labour without due regard to appropriate procedures and processes. Workers will look to their trade unions for protection, and, inevitably, there will be disputes, but people will look also to the Government to provide security and protection from exploitation, loss of employment and unfair treatment by ensuring that appropriate rights and protections are on the statute book. The three new clauses go some limited way in providing reassurance that there is legal redress against unfair treatment and victimisation, and that trade unions can operate effectively in representing their members and in implementing their members’ wishes.
The aim of new clause 1 is to provide protection from dismissal or detriment for workers taking industrial action. I think that Members in all parts of the House agree that the right to take industrial action is a fundamental right. It is guaranteed by international treaties and conventions: the International Labour Organisation conventions of 1987 and 1998; the Council of Europe’s European social charter and article 11 of the European convention on human rights and fundamental freedoms; and article 8.1(d) of the United Nations international covenant on economic, social and cultural rights. The United Kingdom’s law on trade unions—in particular, the denial of the right to strike and to take industrial action—has been held to be in breach of those international treaties by the decisions of their supervisory bodies over many years. The new clauses would not go as far as to try to incorporate or enact the international statutes in UK legislation: I wish they could. My hon. Friend the Member for Wolverhampton, South-West (Rob Marris), who was described earlier as a Fabian, will appreciate the approach of gradually improving legislation, and the moderate approach that I generally take to such matters. The aim is to protect workers taking industrial action from being sued, sacked or otherwise penalised by an employer.
New clause 1 would provide that dismissals in anticipation of, during or after lawful industrial action would be void and ineffective, unless the employer could show that the reason for the dismissal was not connected to the industrial action.
I have a lot of sympathy for my hon. Friend’s new clauses, and I am inclined to vote for the one on which he will call a Division, but, on the point that he just made, I am concerned that we would be asking the employer to prove a negative—that the interest in striking was not the reason for the proposed dismissal. I wonder whether it would not set an impossibly high hurdle, whereby someone who was threatened with dismissal could threaten to strike to invoke the new clause.
In normal dismissal cases, the employer would need to bring forward evidence that demonstrated the grounds for the dismissal. We seek that balance—a demonstration of the legitimacy of dismissal—in this case, so that there are legitimate grounds, other than the taking of industrial action, that the employer can demonstrate. I understand my hon. Friend’s concerns, but, in practical terms, for those of us who have been trade unionists and defended people at industrial tribunals, the emphasis is on the employer to bring evidence of why the dismissal took place. In such instances, the issue is about proving not a negative but the action, other than the relationship to industrial action, that demonstrates the grounds for dismissal.
The new clause does, however, say that
“if…one of the reasons was…industrial action”,
so the employer could demonstrate a perfectly valid reason for dismissal, but, if he was unable to prove that he was not also influenced by the threat of industrial action, he would not be able to proceed.
As my hon. Friend knows, I am one of the signatories to new clause 1. What it proposes is modest. Given how it is phrased, it would not in the 1980s have prevented the dismissal of miners who had been criminally convicted for picketing and so forth. Presumably, such workers would still be dismissed even if the new clause were agreed to. That is why I think it is so modest.
All this is destroying my revolutionary credentials. Let me be clear: we are trying to reach a consensus with the Government. For five years, we have consulted every trade union, through the TUC, on our proposals. There was even a resolution at the Labour party conference proposing similar trade union reforms. [Interruption.] The resolution did get through; there was a majority at the Labour party conference, although I accept that it followed the Gate Gourmet dispute and that it was an emotional period.
My proposal provides for minimal protection, not even to the level of international law, and it is practical. It is a pragmatic approach to ensuring that people cannot be dismissed during industrial disputes.
Will the hon. Gentleman tell us what assessment he has made of the additional tribunal cases that might result from his new clause? Has he assessed how many such cases might be vexatious and how much more cost they would impose on British industry and commerce generally?
I shall come on to the percentages of current cases; at present, they are minuscule, which demonstrates that there is inadequate protection for workers in respect of reinstatement. I shall say more about that point later, and the hon. Gentleman can then come back at me if he wishes.
If a dismissal takes place, the new clause would make it automatically unfair. For employers, that will act as a powerful disincentive to taking on replacement staff and making strikers redundant. Interim relief would be available in all unfair dismissal claims relating to lawful industrial action and employees who had been unfairly dismissed would be entitled to automatic reinstatement if they requested it. The same principle would apply to the imposition of a detriment on the worker by the employer. The employer would have to show that the reason was not the worker’s participation or proposed participation in lawful industrial action. However, let me be clear that that would not invalidate the normal process of withholding remuneration and benefits, limited to those that the employee would have received had he or she not taken industrial action.
Let me explain what the new clause means and what has motivated it. Most hon. Members are aware of the case of Friction Dynamics, which demonstrates that a group of workers can take lawful strike action—they went through a proper ballot and sent out the due notices—yet be sacked. Two years later, a tribunal found that they had been unfairly dismissed. But what happened? What redress did they then have? Their jobs were gone. They could not gain reinstatement orders or even compensation because the employer company had gone into liquidation. Actually, the real owner was trading at the same factory under a differently named company, and the strikers’ jobs had been filled by others. That was grotesquely unfair, and that example—one of the starkest—shocked the House and the Labour trade union movement into action.
Friction Dynamics was located in my constituency. Seven years on, the workers involved have had no compensation whatever. To add to the iniquity of the situation, their then employer has now set up in another town with another variation on the Friction Dynamics-Celtic Friction name. That is disgraceful.
That demonstrates how the law currently fails to protect workers undertaking lawful industrial action, and fails to provide them with any prompt and effective form of redress. Friction Dynamics was the starkest example, but many others can be used. That demonstrates that the law is grotesquely unfair.
In other countries, when industrial action takes place the contract of employment is suspended, not broken. In the past, the Government’s response to these proposals has been to argue that during a lawful strike, protection against dismissal has been provided for up to 12 weeks, but in practice that has proved to be illusory. The right to claim unfair dismissal and receive compensation when sacked does not amount to protection against dismissal.
In response to the hon. Member for Northampton, South (Mr. Binley), the last figures that I have obtained, which are admittedly 18 months out of date but show a trend, show that reinstatement was awarded in only 0.2 per cent. of tribunal cases where claims went to a hearing. That is only 0.4 per cent. of all unfair dismissal claims. Even where an employer is ordered to reinstate, they are free not to comply, subject to penalties of compensation. There are now numerous cases where it is very difficult to gain reinstatement, and even where that happens employers flagrantly refuse to comply. I understand the hon. Gentleman’s point with regard to burdens on business, but I do not believe that these proposals would be burdensome, and that has not been argued in the discussions that have taken place within Government. I think that he will understand that there is an issue of unfairness and equity if we can reach a situation whereby only 0.2 per cent. of tribunal cases result in reinstatements when so many are demanded.
The hon. Gentleman highlights the weaknesses in the current legal situation. His figures are from 18 months ago. Does he think that there might be an additional argument in favour of these proposals in the context of the changed financial environment, where some employers might be further tempted to exploit those weaknesses?
The hon. Gentleman, who came into the debate slightly late, makes a valid point that I made in my introduction. People require greater protection as we enter a recession. They will be looking to their trade unions for protection, but they will be looking to Government to ensure that the legislation is in place to provide that protection.
Does my hon. Friend agree that, as regards burdens on business, the state of UK law arguably leads to unfair competition by our capitalists, because most of the labour jurisdictions in which other capitalists operate, in western Europe and in most of North America, have decent, enforceable rules about reinstatement?
That is a good point. When Tony Woodley, who was general secretary of the T&G and is now joint general secretary of Unite, was the midlands organiser for the car industry, he consistently argued how much easier it was to sack workers in Britain, and therefore how much easier it was to relocate to other parts of Europe. The supervisory body of the United Nations international covenant on economic, social and cultural rights has told the Government on at least two occasions that in order to conform to their ratified obligations they need to protect the right to strike and to ensure that the dismissal of those on lawful strike is prevented and that any such dismissal must be rendered void and ineffective. The new clause would enable a form of compliance with this element of the Government’s obligations and provide some protection from dismissal for workers taking lawful industrial action—those who, before taking industrial action, have complied with every procedure that the Government have obliged them to with regard to balloting, notices and so on.
That brings me on to new clause 2 and balloting. The new clause attempts to resolve the ongoing administrative problems of balloting procedures for industrial action. Let us be clear about this: under the existing procedures, trade unions must, before conducting lawful industrial action, comply with extensive rules on notices and ballots. Anybody who has had practical experience of that process can demonstrate the difficulties of consciously complying with the law. It places a heavy administrative burden and costs on the unions.
As my hon. Friend knows, I used to practise in this area of law, and once those rules were introduced, it became a battle of lawyers rather than a battle of unions and employers. Time after time, I was asked to check balloting processes, and it was absolutely frustrating to find that employers would do all that they could to frustrate the ballot but would immediately rush off to court if one of the t’s was not crossed. I cannot understand why, of all my hon. Friend’s new clauses, the Government do no agree to this one, which I have backed. All it does is level the playing field. If an employer wants a ballot to be held, let us expect him to co-operate by giving the names and addresses of those to be balloted. What is wrong with that?
Various Members will have their own experiences of this situation, but for most trade unionists, let alone lawyers, it is an incredibly onerous task to comply with the law in question. It is costly, overcomplicated and, to be frank, it provides a battleground and a fair income—with the greatest respect to my hon. Friend—for lawyers. [Interruption.]
My hon. Friend was talking about the souring of relations. Does he remember the national dispute last year involving the Communication Workers Union and the Royal Mail? After going through all the hoops by getting all workers in all categories put forward, the Royal Mail spent a huge amount of our money at the last minute on going to court. Is that not nonsense? In his discussions with the Minister, did the Minister give any real reason why the new clause cannot be accepted ?
No; I hope that the Minister will give us the reason why he can accept it. I cannot see any reason why it should be rejected.
We all have examples—I have mine—but the Royal Mail is a classic one. All the information was provided, but the totals of each grade of staff were not added up. All that was needed was a calculator, but on that basis an injunction was awarded to prevent the dispute. As my hon. Friend said, that was costly, and it soured relations between the union and management for a period.
The Government recognised the problem, and they legislated in 1999 and 2004 to tackle the issue. They understood that the procedures undermined the democratic wishes of trade union members by preventing their implementation. I was pleased that the Government recognised that and introduced reforms. Experience has since shown that the reforms were not successful; we still have the same problems. The current laws require unions to provide the employer with exact numbers of members, categories of workers and the workplaces of those to be balloted, but still allow lawyers to apply for injunctions based on small technical errors, even where they have no effect on the outcome of the ballot. That cannot be just, and it cannot be right. The use of injunctions by lawyers is frustrating and undemocratic, especially when the error complained about could have no impact on the final result. It is extremely difficult in modern work life to keep trace of meticulous records of all members in a modern work force.
Hang on a moment. Elsewhere in the Bill trade unions are being given the right to discriminate against their membership in the name of defining what their membership should be, as membership organisations, but here is the hon. Gentleman arguing as part of the package he wants that unions should not have to keep meticulous records of who their members are. That does not hang together very well.
I appreciate the hon. Gentleman’s point, but I am trying to explain the difficulties that exist. I am not trying to argue that unions should not keep meticulous records—they will do their best. New clause 2 seeks to gain employers’ co-operation in statute to enable that to happen.
A good example of my hon. Friend’s point is that, when people change their address, they almost always notify their employer, but nearly always forget to tell their trade union. In these days of postal ballots, how on earth is the union to get the ballot papers to the members if they do not register their addresses? With the best will in the world, the employer knows the employees’ addresses far better than the union, even if the union knows the names of the members, which it does.
I shall deal with the detail of new clause 2 shortly, but it seeks to ensure co-operation between the union and the employer and vice versa—that is all.
Let us consider the difficulties in the modern workplace. First, flexible work patterns have increased among the modern work force. In some industries, workers do not have a regular workplace—they often work from a distance or move between different work sites. Privatisation, out-sourcing and offshoring individual contracts in company departments have exacerbated the trend. Payment of union subscription is often made by direct debit and people do not notify the union of change of employment or workplace. Consequently, employers issue injunctions for minor technical issues, disputes escalate and the overall industrial relations climate deteriorates.
Let me give some examples of the farcical nature of the problems that are experienced. The Communication Workers Union and Royal Mail have already been mentioned. The Union of Construction, Allied Trades and Technicians—the building workers’ union—finds it virtually impossible to comply with the law because so many of its members are on so many different sites that it is cost-ineffective even to try to ballot them. It is difficult to trace them at any one time.
The latest example involves Unite and the bus strike in London. Unite balloted its bus worker members on a wages matter. Bus drivers were being paid differently for doing the same job—even on the same route—because they were employed by different companies under the privatised system. There was 90 per cent. support for industrial action and the results were provided to the general secretary. As some hon. Members know, the procedure in Unite is that the general secretary receives the results, discussions take place with the national executive committee, the matter is passed on to the relevant region and it is decided whether to proceed with the action. That is perfectly appropriate and exhaustively democratic. However, because the process took 36 hours, Unite was injuncted and the industrial action could not go ahead. We are now told that the union may be threatened with damages for some action that took place.
Is not that the core of the problem? My hon. Friend the Member for Wolverhampton, South-West (Rob Marris) is the only lawyer I know who has driven a bus. The judge who made the decision had no practical understanding of the workings of a trade union or of running a bus company. If the matter had been left to the bus company and the trade unions in the spirit of new clause 2, the problem would not have arisen.
The problem is that the current system encourages the rush to litigation. It undermines normal industrial relations as we have experienced them in the past and frustrates individual trade members, who feel that their internal democracy is being undermined. It also frustrates several managers on the ground, whose wishes have been overridden as a result of senior management decisions, after conferring with lawyers, to resort to legal action.
The National Union of Rail, Maritime and Transport Workers had a similar case. It balloted employees of Southeastern Trains and the result was a 72 per cent. majority in support of strike action. Three days before the action was due to commence, Southeastern Trains announced that it sought an injunction against the union on the basis that the ballot was invalid because the union had not included four drivers. The union then balloted those four drivers, but it was argued that that was too late. Four votes either way would have made no difference whatever to the decision to undertake industrial action, but that action was prevented, as was, in my view, the speeding up of negotiations to resolve the dispute. There is example after example of where the Government’s genuine wish to reform the balloting procedures and enable us to return to a decent industrial relations climate and re-establish basic trade union rights in this country have been frustrated because we did not go far enough in 1999 or 2004.
My hon. Friend is being very generous in giving way. It should be emphasised that when a ballot is challenged in the courts and an injunction is granted, that is not the end of the story. The union will rerun the ballot, hoping to dot the i’s and cross the t’s, and inevitably the vote in favour of industrial action will increase dramatically, hardening attitudes on both sides and making the dispute that much harder to resolve in the long run.
I do not know of any incident where the decision of a ballot has been reversed after a subsequent ballot. We have trawled as many cases as we can, looking for examples of where the provisions have been nefariously implemented and trying to get an honest appraisal of how the law is being implemented.
New clause 2 is an extremely reasonable and relatively minor amendment. It is a tidying-up amendment that would place a duty on employers to co-operate with the unions when a ballot is held. What would that mean? Employers would be required to supply information to assist the union in complying with the notice and balloting requirements. In particular, employers would be expected to provide unions with information on
“names, addresses, categories and workplaces of those members whom”
they plan to ballot. That would assist the union in complying with its legal requirements, but not diminish the employer’s entitlements. The employer would have only to respond to reasonable requests. We introduced similar duties in the statutory recognition procedures, which we debated in the House in 2004. New clause 2 goes no further than that, making a simple request for co-operation from the employer, which must be undertaken in a reasonable manner.
I hear exactly what my hon. Friend is saying and I totally support him. Does he agree that there is a marked difference between the private and public sectors? My experience of trade unions in the public sector is that employers would never dream of not realising the type of information that he has described. That is sometimes not the case, but in many cases good relations have been built up over a long period. However, there are still significant problems in the private sector. We need parity, equality and fairness.
That description might have applied 10 or 15 years ago, but I am not sure that it does now. For instance, privatisation, outsourcing, contracting out and the use of agencies rather than departments has undermined the position. Those agencies that remain in the public sector, but which are undertaking work that would have been mainstreamed within a department, now operate virtually as private contractors. There was a difference in the past, but there is an increasingly smaller difference now.
My hon. Friend is being somewhat unkind about the history of such matters. As someone who dealt with the issue in 1999, I can say that the determining factor is not whether an employer is in the public or private sector, but the relationship at the point that the dispute breaks out and industrial action becomes possible. It is irrelevant whether the employer is in the public or private sector. The consequences are quite devastating, and the real issue is not the right of trade unions as bodies, but maximising the participation of the work force in a decision that might lead to them withdrawing their labour, with all the consequences that my hon. Friend has mentioned.
Any laws that undermine union members’ democratic participation in and control of that union need to be reformed. That is what our amendments are all about. I agree with my right hon. Friend. There can be poor employers in the public and private sectors. The differences have now gone and complications are experienced just as much in the public sector, as units have been broken down and forms of flexible working have been introduced, even right down to hot-desking, all of which make it difficult to maintain records of membership.
On the public-private issue, is my hon. Friend aware that, when Unison has to conduct a ballot in schools, it now has to write to 25,000 schools? Among the 25,000, it knows that 10,000 now have a degree of self-management, and that not all those schools are well disposed towards trade unionism. However, the union does not know which other schools might have changed their status and, as a belt and braces measure, it has to contact all of them. This involves massive expense and a great deal of uncertainty for those involved. It makes no difference to the outcome of the ballot, because a ballot has never been lost on that basis, but it does increase resource costs to union members.
We have been talking about the complicated nature of the changes taking place in the workplace, in the public and private sectors. I am sure that my hon. Friend will be aware that individual workers are often not informed of changes—for example, changes involving the identity of the employer, complex corporate changes and changes to job categories. That is precisely the kind of information that the courts require be provided. Does he agree that the employer is often best placed to have the most accurate information, and that it is therefore reasonable to require them to provide it to the trade union, to enable the trade union to comply with the law?
The new clause is simply seeking to ensure the co-operation of the employers who hold that information, and it would be in their long-term interests to comply with such a provision.
I apologise for having dealt rather flippantly with the point on education made by my hon. Friend the Member for Manchester, Central (Tony Lloyd). He provided a very good example of an area that contains an enormous range of establishments, resulting in balloting incurring very high costs. The Electoral Reform Society and other organisations must be making a fortune out of that. I must declare an interest at this point, because my wife works for the society, but that is another thing altogether.
It would be relatively easy for individual schools to supply information to a union, and for co-operation to be established in that way. That is all that new clause 1 seeks to achieve. It seeks to ensure that employers are engaged in assisting unions to keep their records up to date, which would enable proper democratic ballots to take place. My hon. Friend mentioned Unison, and that is a good example. One of the worst things that can happen is for someone not to receive their ballot papers. They feel aggrieved at having been unable to participate in the decision and, if industrial action does take place, they feel that they have not been party to that final decision.
May I underline just how modest my hon. Friend’s proposal is? The balloting procedures exist so that, if a union goes through them properly, it will not have damages awarded against it for the tort of inducing a breach of contract. A more radical proposal—which I suspect my hon. Friend might, at some point, consider—would be to abolish the tort of inducing a breach of contract. If we did that, we would not need this panoply of balloting procedures.
We would then be on a par with European law, because the right to strike is in place in most European constitutions. As my hon. Friend knows, the history of this goes back to Taff Vale in 1906, when we gained impunity against actions for tort when industrial action was taking place. The interesting thing is, however, that we now have fewer trade union rights in this country than we had in 1906. After 11 years of a Labour Government, I congratulate them on some of the improvements that have been made, and I am hoping that tonight we will be able to move that bit further towards re-establishing some fundamental rights for trade unionists.
New clause 3 deals with agencies, and seeks to address the continuing problem of the use of agency workers by an employer to replace striking workers during an industrial dispute. I congratulate the Government on seeking to address that issue in 2003, but certain anomalies remain as a result of problems with the law. The new clause seeks to tidy up the Government’s original proposals. I should like to explain that in a little more detail.
In 2003, the Government introduced the Conduct of Employment Agencies and Employment Businesses Regulations 2003. The regulations bar the use of replacement labour to carry out the duties normally performed by a worker undertaking lawful industrial action or lawful strike action. They also bar the replacement of a worker who has been assigned to do the work normally performed by a worker undertaking lawful industrial action or lawful strike action. There are, however, three fundamental weaknesses in the regulations that need attention.
First, the regulations distinguish between an employment agency and an employment business. An employment agency introduces workers to hirers for direct employment by the hirer, and it can include temporary contracts. An employment business, on the other hand, supplies temporary and casual workers to third-party hirers. The clause barring the provision of replacement labour during lawful strikes applies only to those hired through employment businesses. If an employer hires labour through an agency rather than a business, they can avoid liability for engaging casual labour during lawful strikes. The amending provision would remove that anomaly. Secondly, the bar on supplying replacement labour applies only if the supplier knows that the worker is replacing one taking industrial action, so the onus is on the supplier of the labour to know whether industrial action has taken place. The amendment would clarify the regulations to impose a duty on the hirer—the employer—to inform the supplier about industrial action, and makes it unlawful for the hirer to hire replacement workers to carry out work usually done by workers who are lawfully engaged in industrial action. It closes that loophole; it is a tidying-up provision.
Thirdly, current regulations relate to replacement labour being employed during periods of official industrial action. However, the legislation has proved ineffective in that it allows employers to hire labour just prior to industrial action, thereby letting bad employers avoid the intent of the legislation. The amending provision would ensure that replacement labour could not be used to do the work of those taking part or intending to take part in a lawful strike.
My hon. Friend the Member for Vauxhall (Kate Hoey) provided a good example earlier when she mentioned the Communication Workers Union dispute at Royal Mail. Hon. Members will recall that the CWU took industrial action in 2007 when Royal Mail was repeatedly challenged about the recruitment of casual labour during the dispute. The union referred to the restrictions in the Conduct of Employment Agencies and Employment Businesses Regulations 2003, claiming that in Bristol alone the use of casual staff increased from 12 immediately prior to the dispute to more than 250 during the dispute. The employer, the Royal Mail, insisted that it was acting in accordance with the law. So confident was it in its ability to circumvent the intention of the legislation that it established a number of operations at various sites across the country to do the work of the striking workers, using casual labour. It did so by utilising the loopholes in the Government’s legislation. The use of such tactics undermined the staff’s decision to go on strike and demonstrated the failure of the regulations to prevent employers’ abuses, which the Government had sought to legislate against. It soured industrial relations in the Royal Mail for a long period to come.
May I provide my hon. Friend with a more up-to-date example, in that a dispute is brewing in the port of Dover? About 200 of the work force are about to be laid off or hived off to the private sector, and we heard yesterday that Dover harbour board is considering taking in Gurkhas to fill the gap. Is that not precisely the sort of loophole that we need to close to stop that sort of thing happening again?
I believe that the Government legislated with good intent to close that loophole in 2003. Let us be frank about it: scab labour was being used to undermine a legitimate dispute. The Government thought that they had seriously resolved the problem. Since 2003, however, we have seen so many examples of where employers can, with appropriate legal advice, ride a coach and horses through the legislation. That shows why we need the new clauses.
I want to add to my hon. Friend’s point about the bitterness that has been caused in the unions. The Communication Workers Union does things properly and has done so for many years, and its members serve the public day in, day out. I know how much bitterness has been left in areas such as my Nine Elms and other parts of London as a result of what happened in that dispute. It has been particularly damaging and it shows precisely why the Government should accept the new clause. Otherwise, long-term damage will be done to the relationship between trade unions and the public.
I could not have said it more eloquently myself. I would add that abuse of the system by attempts to outflank the regulations also provokes unlawful wildcat action—understandably, as people get so angry when other workers are brought in to take their jobs and undermine their work and conditions. Usually, as we all know, people are paid pretty exploitative wage levels.
If the Government cannot accept the new clause, I hope that they will accept that there is an issue to be addressed and produce some proposals within a limited timetable. It was the Government themselves who sought to legislate to avoid the problem in 2003.
As my hon. Friend knows, I have signed up to his new clauses. If the Government are not minded to accept them, however, does he agree that since the previous reform was brought about through regulations, the Government could quickly produce amendments to those regulations, which could then be passed relatively quickly if they thought it desirable?
It is my view that the provisions are a tidying-up exercise, closing loopholes in legislation. It would be reasonable for the Minister to announce some consultation on appropriate delegated legislation that could deal with the problem. That would be entirely within the spirit and conform to the principle of the Government’s intentions in 2003.
In this difficult economic period, we all hope that we can protect people in their jobs, secure their employment and, above all else, prevent exploitation, victimisation and unfair treatment. The three new clauses will go some way towards providing limited protection in the more difficult economic environment in which we all now operate.
I hope that the Government will think seriously about balloting procedures, so I will want to test the will of the House on new clause 2. On new clauses 1 and 3, I would welcome a statement from the Minister that there are issues to be addressed and that the Government will look into how to address them, perhaps by consulting hon. Members, trade unions and employers to see how best to move forward and ensure a good industrial relations climate in the coming period. At the very least, we should attempt to ensure fairness and prevent unequal and unfair treatment.
The Bill has wound its way between our two Houses for some time now—I believe since 7 December last year—with more or less agreement between the various parties on its contents, albeit with a difference of emphasis. We feel that the Bill is also a lost opportunity in failing to relieve the regulatory burden on business in respect of employment. As to these pro-union new clauses, the mood changes somewhat, as we totally oppose them. Here the true face and belief of the hard left of the Labour party is exposed and it is not a pretty sight for business.
The starting point of all modern industrial relations law is—and has been for well over 100 years—that industrial action is unlawful unless protected. In effect, participants in authorised industrial action have protections against being sued, making industrial action lawful. As such, the new clauses would represent the most fundamental change to industrial relations law for a century and could catastrophically unbalance industrial relations in the UK, empowering trade unions to bring our economy to its knees.
Section 238A of the Trade Union and Labour Relations (Consolidation) Act 1992 was inserted by the Employment Relations Act 1999. As it currently stands, the section provides protection to a striking employee within a framework. There is no sense that the employee is to be considered unfairly dismissed through an arbitrary action in statute. The new clause would allow striking employees to hold companies to ransom. It would serve as a brake on commercial enterprise and return us to the dark days of the 1970s—three-day weeks and perpetual strike action.
The hon. Gentleman clearly does not understand industrial relations or the law. What he refers to was originally set up to ensure that when employers face a ballot for industrial action, they have good-quality information. It runs side by side with provisions such as cooling-off periods, which were introduced so that the employer and the trade unions could negotiate to try to resolve the problem and the ballot would not need to be put into action. He is wrong to tell the House that the problem is striking employees. They do not strike until after all the law on balloting has been implemented. He is wrong.
I appreciate what the hon. Gentleman says. Indeed, the Bill is reforming the law in relation to ACAS, and we have for the most part supported the provisions on that. However, with this new clause we are staring down the barrel of a return to the old nasty days. Given that 90 per cent. of the Labour party’s funding comes from the very trade unions that the new clause would empower, perhaps Labour Members would welcome such a change—or they are at least unable to prevent their arms from being twisted by their party’s sponsors.
The hon. Member for Hayes and Harlington (John McDonnell) needs to put the new clause in context. For starters, will he say what unions have been promoting it? Does it form part of the Warwick II agenda, for instance?
My interest is clearly stated in the Register of Members’ Interests. It forms no part of the debate because a law firm would act for either party in a dispute.
What has happened—hon. Members may agree with this—is that the Government have presided over a period of greed and arrogance on economic matters. The Labour Government have come to represent the zenith of boom and bust. They have taken the nation to the brink of recession. Businesses across the UK now face difficult decisions as a result. Jobs will be lost and businesses may fold. The last thing the Government should do is hand the power to self-interested employee groups to hold companies to ransom. The Government would be wrong to do anything that more than simply dismisses the new clause. If they do not, it would add yet further weight to the rumours that the “beer and sandwich” culture of the 1970s has worked its way back into Downing street.
I understand that Mr. Richard Balfe has been talking to trade unions on behalf of the Conservative party. I would be interested to hear whether he has delivered the same message as the hon. Gentleman is setting out, because I am not sure how long those discussions would have lasted had Mr. Balfe given that speech to the trade unions. What have those discussions been about?
The purpose of the debate is not to go through our private discussions with trade unions. However, we are more than happy to talk to trade unions. We have been doing that and will continue to do so because we want to have a smooth industrial relations policy when we get back into power. That does not mean that we will go to the extremes set out in the new clauses.
The trade unions have not personally approached me to discuss the new clause, but it seems as though they have approached a lot of Labour Members.
Let me mention the worst aspects of the new clause from the Conservatives’ point of view. It would be virtually impossible to dismiss a worker conducting industrial action under proposed new section 238A(1) and (2). Currently, employers can only fairly dismiss workers who are conducting union-approved industrial action where, first, there has been no proper ballot; secondly, they have made reasonable steps to resolve their trade dispute; thirdly, they dismiss every striking worker; and fourthly, they do not re-engage any of them within a three-month period. Although that scenario is extremely rare, the provisions are vital. They ensure that an employer can ultimately get on with business when striking workers are making unreasonable demands. In our view, the provisions clearly already provide reasonable protection to those who are conducting authorised action.
Industrial action short of a strike would be legalised by proposed new section 238A(3) and (4). The effective legalisation of action short of a strike, such as work-to-rule or a sit-in, would empower unions in a way not seen since the 1970s, when work-to-rule formed part of the action taken by unions intent on crippling the economy. Unbelievably, unions would no longer be liable for the consequences of their actions under the new clause. That is of fundamental importance. Under the current law, injunctions can be granted against trade unions by the courts and damages awarded where actions that they have endorsed are viewed as unjustified or disproportionately damaging to the employer. That provides an important check and balance against inappropriate behaviour and is mirrored by a substantial body of law restricting an employer’s conduct in a trade dispute. By removing liability on a worker engaged in industrial action, the unions would no longer be liable either. That would fundamentally unbalance industrial relations in our country.
Does the hon. Gentleman not in any way consider that what he has just said could change the mood of the relationship between employers and employees and might encourage more people to work to rule rather than take the risk of strike action?
I simply disagree. The hon. Gentleman is not right.
Proposed new section 238AA(2) and (4) would mean that staff are entitled to full pay when conducting industrial action, removing any disincentive from taking such action. Proposed new section 113A to the Employment Rights Act 1996 would make it impossible to make redundancies wherever industrial action occurs, even if the whole business would collapse as a result. Requiring employers to provide the detailed information necessary for ballots would place an unfair administrative burden on them during tough times. Moreover, the new clause would shift responsibility for conducting a proper ballot from the unions to employers, effectively giving the union someone else to blame if there are flaws in their paperwork or ballot conduct.
In general, the new clause has a number of fundamental flaws. It calls for the continuation of employment as well as an award for damages where an individual has been dismissed for industrial action. That is in effect a double bite at the cherry—an opportunity that would not be offered to normal employees in any other unfair dismissal proceedings. Hon. Members who have tabled the new clause either hope to carve out a preferential niche for striking workers or they should have consulted more widely on it.
Let me declare an interest. I have been the managing director of a company employing 140 people who has been the target of vexatious claims. I hope that that interest is well understood by Labour Members.
I draw my hon. Friend’s attention to the statement in proposed new section 238AA(2):
“A worker has the right not to be subjected to any detriment by any act, or deliberate failure to act, by his employer”.
Does that not give an employee who has not been promoted a year and a half after industrial action the right to claim constructive dismissal on the basis that he was denied promotion because he had taken part in that strike?
I think that my hon. Friend’s point is very arguable, and is of huge concern in the context of the real impact of these provisions.
The new clause goes on to offer striking workers immunity from dismissal proceedings by the company. That too goes one step further than the current provisions of section 238A, thus pushing the new clause further into the category of what we see as unacceptable. I am afraid that, from a pro-business standpoint, it loses none of its initial unreasonableness as it proceeds. Taken as a whole, the new clauses would tie the hands of business in an unacceptable manner, at a time when we should be unburdening businesses to allow them to survive these turbulent times.
What I have said about new clause 1 could just as easily be applied to new clause 2. Again, trade union representatives are seeking preferential treatment for those on strike, or, in this particular case, those about to strike. On a fundamental level, I find the new clause difficult to swallow. It would place a duty on an employer to assist in an action that would harm their own business, which is akin to asking a condemned man to tie his own noose.
Section 226 of the 1992 Act requires unions to hold a ballot before industrial action is taken for it to fall within the category of “protected action”, and the Act goes on to secure a union’s right to strike. That right should not be further extended to impose a duty on companies to assist union members in bringing their action within the protection of the legislation. If union officials cannot do that themselves, and also need the company to supply the details of their own members, I cannot see why they deserve the protection that the new clause would provide.
New clause 3 would prevent companies from employing workers to fill the places left by those taking industrial action, which I think the hon. Member for Blyth Valley (Mr. Campbell) called a scam.
The new clause would hamstring businesses and prevent them from continuing their business during such action, which in turn would artificially exacerbate the effect of any industrial action, and would hand a powerful bargaining tool to the unions.
Given the anti-business rationale of the new clauses, we in the Conservative party oppose them wholeheartedly, and strongly suggest that the Government do the same.
Following that speech, I hope to throw a little more light than heat on our proceedings.
Unlike some Members, I have listened carefully to both sides of the argument, and have taken advice from both the TUC and the CBI. On new clause 1, I cannot quite agree with the CBI, which has said:
“Implying that industrial action is inherently lawful would represent the most fundamental change to industrial relations law in generations—and could empower trade unions to bring our economy to its knees”.
I do not recognise that description, nor do I recognise the description that we heard from the hon. Member for Huntingdon (Mr. Djanogly).
New clause 1 would replace the section of the Trade Union and Labour Relations (Consolidation) Act 1992 which deals with the dismissal procedures applying to those who participate in official industrial action with a new section that strengthened the protection of employees participating in lawful industrial action. The question is whether the onus should be on the employer to prove that a dismissal was not related to a strike, or on the employee to prove that it was. If the dispute was about wages the new clause would work, but if it related to disciplinary charges or charges of victimisation, it might well encourage workers to go on strike in the knowledge that they could not be sacked. Although I am very sympathetic to the aims of the hon. Member for Hayes and Harlington (John McDonnell), I hope that the Government will investigate the new clause further, and return with a proposal on which all Members can agree.
Order. We must not have these continued interruptions. They seriously disrupt the debate. If the hon. Member for Blyth Valley (Mr. Campbell) wishes to intervene, he should do so in the usual way.
One man’s wishy-washy might turn out to be another person’s honest attempt to take a balanced view. I am sorry that the hon. Member for Blyth Valley does not recognise that.
The Liberal Democrats are not in a position to support the new clause at this stage, but we believe that the hon. Member for Hayes and Harlington has made an interesting and valid point. I hope that the Government will be able, on another occasion, to present us with a measure that could work in any number of circumstances.
I am afraid that we are not in a position to support new clause 2 either, because it appears to place an onerous requirement on employers to supply information to unions in relation to industrial action ballots. As I am sure all Members know, strike action can have extremely serious consequences for a business or organisation.
The hon. Lady says that strike action can have an onerous effect on employers. I was an officer for the Unite trade union for 20 years, and never once encountered a trade union member who wished to go on strike. Employees never gain from strike action: they lose money that they never get back, and they can only ever achieve what they were aiming for.
The hon. Lady should bear in mind the fact that although employers have legitimate claims about industrial action, so do employees. That is why the law is couched in a way that protects employees against detriment. Any employee whose name is not on the list is not protected; the aim of including all the names on the list is to protect the employees as well as the employer.
I certainly did not intend to imply that strike action does not have serious consequences for employees as well. When industrial relations reach that point it is always a tragedy, and I am sure that both sides would want to avoid that at all possible costs.
I consider it right for any union proposing a strike to keep meticulous records, and to supply full information as specified in the current legislation. If subsequent stages are problematic in the way described by the hon. Member for Hayes and Harlington—for instance, if judges grant injunctions in apparently unreasonable circumstances—that is surely a matter for the judicial system rather than the employer.
I am listening carefully to the hon. Lady’s speech, and I understand the balance that she is trying to strike, but may I ask her what redress employees have in a poisonous industrial dispute in which an employer furnishes false information about their status?
The hon. Gentleman probably knows the answer to that question better than I do. Perhaps he will be able to inform the House later.
How does an employer know whether all the categories of staff on whom the union asks for information are actually union members? I suggest that he cannot know. Is it not up to unions to keep records of their own members? In my view, the new clause imposes an onerous additional requirement on employers.
New clause 3 is reasonable, and we would support it. It seems that there are loopholes in existing law and that employers and agencies are colluding to get round current legal requirements. If, as some Members might wish to imply, such loopholes do not exist, there is no harm in adding the new clause to the Bill.
We do not support new clauses 1 and 2. I believe that the hon. Member for Hayes and Harlington will press only new clause 2 to a Division. That is a shame, as I would have welcomed the opportunity to support him on new clause 3.
I will not detain the House for long. Many of the old Labour Members who are present will know that I am a trade unionist: I was a proud member of the Fire Brigades Union for many years. When I joined the FBU—which was before it was thrown out of the Labour party—it was a closed shop, although I am pleased to be able to say that the union has moved on from that.
I have grave concerns about two aspects of these amendments. New clause 1 has been extensively discussed, but I wish to talk about proposed new section 238AB(4)(b), relating to complaints to employment tribunals. It states:
“and for the avoidance of doubt, compensation may be awarded in respect of injury to feelings whether or not awarded under any other head.”
That measure would allow an unlimited sum of compensation to be awarded for “injury to feelings”. How will that be assessed? My feelings are very upset that old Labour Members are not screaming and shouting at me, as a former trade union member, for standing up to speak against new clause 1. Am I to be compensated for that? Should I approach a trade union and say, “Come and represent me, and see if my feelings have been hurt”? This is a ludicrous situation.
No, I will not give way.
Under this proposed measure, an unlimited sum of compensation could be imposed on a large or small company because somebody’s feelings had been hurt. I am sure that this proposed new section was drafted with the best intentions, but it should have been drafted much better, and that could also be said of several other parts of new clause 1.
As for new clause 2, I am astonished that so many of the trade union members and former trade union members who are at this moment sitting on the Labour Benches—some of them with 20-odd years’ experience as officials in trade unions—do not have a clue where their members are. How can they turn to an employer and say, “Excuse me, but I’m not quite sure where my membership is at present, so will you please be kind enough to let me know where my members are?” What sorts of organisations are you Labour Members members of? My fishing club knows where I live, let alone a trade union with thousands or millions of members around the country. Perhaps some of your members should have more contact from you. Perhaps some of your members should know—
Order. The hon. Gentleman must remember that they are not my members.
For the avoidance of doubt, my hon. Friend should know that for a number of years now one of the larger unions has insisted that I am a member of that union, and I repeatedly get voting rights papers coming through the door. The unions had got themselves into quite a mess even when I was leader of the party, and this is why these Labour Members have tabled this new clause.
My right hon. Friend highlights the complete chaos that still exists within the trade unions. Perhaps before the unions go to the employers and ask where their members are, they should make a point of contacting their members and explaining to them how much of their contribution to the trade union goes to the Labour party and is bankrolling the Government. That is crucial, because if they are doing that—[Interruption.] Labour Members say from a sedentary position they are doing that now, but if they are doing that, they do not need an employer’s help to find out where their members are. On that basis, any sensible person would oppose new clause 2.
I am pleased to express my support for the new clauses. If there is a Division I shall support new clause 2, and I hope the Government will take account of our discussions on new clauses 1 and 3 and will look to make changes to the provisions.
As Friction Dynamex has been referred to, I shall speak briefly about that company. I am the MP for Caernarfon where it was located, and I represent the bulk of workers. The other workers are represented by the hon. Members for Ynys Môn (Albert Owen) and for Conwy (Mrs. Williams), and I hope they will be able to make their views clear if there is a Division.
I shall not rehearse the events at Friction Dynamex in detail, except to say that the workers did win their case at the industrial tribunal in the face of provocations and manipulations, and evasions and underhand and infamous tactics on the part of the employer. They and the union concerned were very careful to follow the rules and the law. They acted properly, and they remained united with the support of the local community. They won their case at the industrial tribunal because, fortuitously, my predecessor, Dafydd Wigley, kept recorded contemporaneous accounts of a telephone conversation with the employer, which revealed his real intentions, which were to provoke a strike, sack the workers, strip the assets from the company and make away with large sums of money. That is what happened at Friction Dynamex, and the aftermath is that Friction Dynamex has closed, the factory is derelict, the workers have been dispersed and have received no compensation, and the employer has now set up in another town and, from all accounts, is up to his old tricks again.
These new clauses seem to me to be eminently reasonable in their intention. They would have led to this case not having to come before an industrial tribunal and to the avoidance of years of struggle, stress, loss of earnings and loss of compensation, which my constituents, and those of other Members, faced in this long drawn-out industrial dispute. Had these provisions been in place, there would also have been a disincentive to bad employers to set up in the first place, setting in train the sort of wicked plans the employer at Friction Dynamex followed. I hope the Government take notice of this debate and look carefully at changing the provisions so that good employment practices can drive out the bad. That is no small prize.
Let me begin by thanking the many hon. Friends who have turned up to support this important Bill, which deals with a number of issues that are close to our hearts.
I think it is safe to say that the new clauses would take the Bill into some new areas compared with the debates we have had so far, and, as my hon. Friend the Member for Hayes and Harlington (John McDonnell) said, some of them reflect the private Member’s Bill that he and other Members sponsored not long ago.
New clause 1 proposes extensive changes to the law protecting individuals against dismissal or the suffering of other detriment for taking, or proposing to take, industrial action. My hon. Friend is always modest when proposing these changes; he describes them as modest and minor tidying procedures, but although I appreciate that these are sometimes subjective judgments I am not sure whether everything he has said would be regarded as such.
The law with which new clause 1 deals was changed by the Employment Relations Acts 1999 and 2004, which introduced two new forms of protection against dismissal for employees taking part in protected industrial action—in other words, action that is official and lawfully organised. The first protection was that it became automatically unfair to dismiss individuals for taking protected industrial action lasting 12 weeks or less—we also discounted lock-out days from the calculation of that 12-week period. My hon. Friend the Member for Hayes and Harlington and the hon. Member for Caernarfon (Hywel Williams), who spoke for the Welsh nationalists, mentioned the Friction Dynamics dispute. Some of these changes came in after that dispute, and reflect the changed legal picture since.
The second protection covers the actions taken by an employer to resolve a trade dispute with a trade union. Under the law, it is unfair to dismiss a person for taking any form of protected industrial action, including action lasting more than 12 weeks, where the employer has failed to take reasonable procedural steps to try to resolve the trade dispute—a protection does extend beyond the 12 weeks where the employer refuses to engage. Those significant protections have come into force since some of the disputes that have been mentioned, and they cover the vast bulk of official industrial action. Most industrial action is relatively short-lived; few disputes last more than 12 weeks. We can argue about the past, but the statutory protections against dismissal are greater than have been in place for a long time.
My hon. Friend the Member for Hayes and Harlington believes that the law should specify in detail what sanctions short of dismissal the employer may apply against those taking part in protected industrial action and that those sanctions should be limited to the loss of earnings when the workers are on strike and, therefore, not working. That is typically what happens at the moment, although I accept that there can be disputes about this. For example, I understand that in a recent case in the education sector there was concern that the employer had deducted larger sums from pay than was fair in relation to the dispute. The court found in favour of the union member, stating that the employer had incorrectly calculated the amounts of pay to be deducted. In that case, the existing law provided an adequate constraint against abuse.
New clause 1 contains an extensive proposal to change the law by making it, in effect, unlawful for an employer to terminate a contract, where it is broken by a worker, for taking protected industrial action. The new clause would make it automatically unfair to dismiss an employee if any of the reasons concerned the taking of protected industrial action and would lift the limit of compensation.
The Minister will know that I welcomed the Bill in Committee, specifically because it placed more responsibility on ACAS to negotiate before tribunals were reached. Does he recognise that new proposed new section 238AA(2) opens up the opportunity for vexatious cases in the way that I described in Committee? Such an approach has helped to create a blackmail culture, which has made many small businesses give in to charges because it is cheaper to do so than to fight them. Will this proposal not simply open that up again?
Elsewhere in the Bill we are strengthening the role of ACAS in dispute resolution, as is right. We have also committed to increase funding to ACAS in order that it may fulfil this role. That is the right thing to do, because if we can resolve more disputes before they reach a tribunal, that is in the interests of all concerned.
New clause 1 also proposes that tribunals be required to order the reinstatement or re-engagement of people sacked under these provisions. Under the new clause, the tribunal would not have a judgment to make about the suitability of reinstatement. This is a delicate area, because automatic reinstatement may not be suitable in all cases. As we know, tribunals can order reinstatement in some circumstances. I appreciate the intent behind the comments made by my hon. Friend the Member for Hayes and Harlington, but there is at least a question to be answered about why unfair dismissal on the grounds covered in his new clause should be treated differently from unfair dismissal on the grounds of discrimination or disability.
New clause 1 is based on the premise, which the Government do not share, that the law governing these matters is grossly unfair to one party. There will always be debate about the balance in these situations, but we believe that, through the reforms that I have cited, we have put in place a fair and balanced system of protection for those taking industrial action.
An important aspect lies in ensuring that a tribunal has the capacity to take a decision other than reinstatement. There are occasions when between being dismissed unfairly and a tribunal decision the worker seeks and gains employment somewhere else. If it is simply a matter of reinstatement, they will lose the opportunity to be compensated for the loss of their job and for being dismissed unfairly. It is crucial that the options should include reinstatement, but, where that is not in the worker’s interests, an alternative to reinstatement should be forced on an employer, if necessary, by the tribunal.
My right hon. Friend makes a strong point about discretion for tribunals in this situation and about why automatic reinstatement may not always be the wisest action.
The essence of new clause 2 is to enlist the support of the employer to ensure that the trade union can fulfil its legal obligations regarding industrial action ballots. Representations have been made to the Government about the information required in the balloting process and so on. The question I pose is whether the right answer is to impose this new duty on the employer, in effect, to aid the trade union in organising industrial action. Again, my hon. Friend the Member for Hayes and Harlington may view this is a minor tidying amendment, but I am not sure whether that is how it would be seen.
The Minister will be aware that there are 274,000 companies in the construction industry and that an amalgam of companies work on many of the larger sites. Many of the employees are falsely self-employed, so it becomes terrifically difficult to organise any kind of industrial action in a way that will engage everyone who is working and who has the right to strike. A provision of this nature would cover those circumstances.
As I said, representations have been made to us about the difficulty that the law imposes on trade unions’ organising industrial action. There is a rationale behind that difficulty, because we want disputes to be properly organised and for there to be a ballot where people can express their views in private and make a free choice. In response to those representations, is the right thing to do, as the new clause proposes, to place an onus on the employer to aid the union in organising the industrial action?
My hon. Friend is over-interpreting what I am saying; I am saying that we have received representations about this matter, but I am not indicating what he suggested. He says that the employer should assist the trade unions because the obligations on them are too onerous and small slips by a union can result in legal action against it, the granting of injunctions and so on. The new duty on the employer that he proposes would relieve what he sees as an excessive burden on the union. Again, I hope that he would acknowledge that we took steps in the 1999 and 2004 Acts to clarify industrial action law. About a dozen measures were taken to unravel some of the complexity in that area. For example, new section 232B of the 1992 Act permits the court to disregard small accidental failures by the trade union to comply with key aspects of the law on industrial action ballots—so some flexibility has been provided.
My hon. Friend is correct to say that the Government have introduced legislation in the interests of working people and employers. I am not a lawyer, but the crux of the matter—this is what exercises me greatly—is that there is a difference between the approach to law in a criminal court, which is there to see justice done, and that of an industrial court, which is there to see the word of the law carried out. Industrial courts are very much colder and deal with much more specific situations. No matter what the member for the Fire Brigades Union, the hon. Member for Hemel Hempstead (Mike Penning), says, it is almost impossible for organisations as big as trade unions to be word perfect and on the dot.
Before my hon. Friend took that intervention, I think that he was about to say that he was not sure whether the new clause would do the trick and solve the problem of the trade union cases brought to his attention. Does he recognise that those cases are matters for concern and that the Government should address and solve the problem that they pose?
I do not want to put myself in the position of judges in such cases, but, if my hon. Friend will bear with me, I shall touch on one of those examples in a moment.
The changes that we have made make it clear that trade unions are not expected to hold perfect information about their members whom they intend to ballot. The information supplied in the notices
“must be as accurate as is reasonably practicable in the light of the information in the possession of the union at the time”.
The presumption is not, therefore, that the union must access information available to others. To comply with the law, it will not need information held by the employer that it will not necessarily possess.
My hon. Friend the Member for Ellesmere Port and Neston (Andrew Miller) asked about some of the cases quoted, one of which concerned a recent dispute involving bus drivers—I, too, have received representations about that. I am always cautious when commenting on particular cases, because I do not pretend to know all the facts, but my understanding of that case is that the issue in dispute—pardon the pun—was the timeliness of the information, rather than the accuracy of the ballot result.
That was my point: 36 hours elapsed between the receipt by the general secretary of the ballot result, which was overwhelmingly in favour of the dispute, and the application of the union’s internal democratic procedure, including consideration by the general secretary, the executive and the regions—in Unite, the regions are quite important. During those 36 hours, the union was injuncted because the employer was not informed in time. I do not believe that anyone would consider it reasonable for the court to make such a decision.
The new clause deals with something different: the employer helping the union organise the ballot. The question has been raised about whether unions should know who and where their members are. We have encouraged unions to keep better records—in fact, we made funding available for it through the union modernisation fund—because we think that that is in the interests not only of trade unions, but of society as a whole.
I accept totally what my hon. Friend says about the union modernisation fund and the attempt to modernise unions—something similar should have been put in place for employer organisations. Nevertheless, does my hon. Friend accept that it is almost impossible for organisations with 7 million members to be perfect? If that is true of trade unions, it must also be true of organisations such as the National Trust, which has 1 million members. Why are trade unions treated differently?
My hon. Friend says that unions organise legal ballots, but most employers do not challenge the ballots in the courts. As a lawyer who practised in this area, I can tell hon. Members that were I acting for the employer, there would be very few ballots with which I could not find something wrong to present to the court.
These debates are always enriched by union lawyers who have practised in this area, and I take all their points seriously.
I am happy to maintain a dialogue with trade unions, as with anyone, about how the law operates, but I am not convinced that a duty on employers to help trade unions organise ballots is the right way forward, so I am afraid that I cannot agree with new clause 2.
Employers, such as the Post Office, rightly have the opportunity to write to their employees about why they should not strike. If that happens, it means that the employer has decided what position the work force is likely to take in the ballot. That must mean that it has the information available to enable it to write to its work force. Employers and trade unions should have access to a common list of people with whom to communicate. Increasingly, employers, such as the Royal Mail, that take unions to court will have already written to employees—legitimately—asking them not to take part in a dispute. On that basis, a way forward might be found, if my hon. Friend will look at it.
I listened carefully to what my hon. Friend said about new clause 2 and the ills put before him. I think that he has accepted that there is the capacity for some ills to arise in this area of the law and, in particular, that the law should not allow an employer artificially to frustrate the democratic will of trade union members where the union is only the servant of that will. Will he undertake to consider what remedies could be made available to deal, for example, with the Metrobus situation, in which it is quite clear that the employer used an injunction to stop a strike that the employees thought was valid?
A couple of my hon. Friends have tempted me to give undertakings, but I am afraid that I cannot do that this evening. As I said, however, we are always happy to have a dialogue about such issues.
Let me turn briefly to new clause 3, which seeks to strengthen the Conduct of Employment Agencies and Employment Businesses Regulations 2003 in respect of the supply of workers. The approach behind the conduct regulations is to seek to reflect the interests of work-seekers, employment agencies and employment businesses, and the companies that use their services—[Interruption.] Regulation 7—[Interruption.]
Order. Conversations are breaking out throughout the House. The House must listen to the Minister who is addressing it.
Regulation 7 already contains provisions prohibiting employment businesses from supplying temporary workers to replace workers who are taking part in a strike or other form of industrial action. The same regulation prevents employment businesses from supplying temporary workers to do the work of other workers who have been transferred by the business to do the work normally done by individuals taking action. New clause 3 seeks to add to that provision by placing similar prohibitions on businesses that seek to hire agency workers and by requiring those businesses to inform the employment business of any strike or other industrial action when seeking to hire workers wholly or partly as a result of that industrial action.
Representations have been made to me and to the Department about compliance with that provision. Although the employment business is liable to be prosecuted for any unlawful supply of agency workers, the allegation is made that non-compliance could be at the behest of the business hiring the agency workers. In addition, there might be circumstances where the agency is not aware whether the workers it supplies are working in an area that is affected by industrial action. That is the representation that is sometimes made. I know that we have been given examples, but we have received few reports that the existing provisions have not proved effective.
There have been a number of investigations by the employment agency standards inspectorate into complaints about breaches of the provision and, in the vast majority of cases, the inspectors have not found evidence of non-compliance. Indeed, there is evidence that agencies take their responsibilities under the provision very seriously, frequently warning their client companies that they cannot supply workers to replace those taking strike action. The new clause would also require businesses to inform the employment business of such action when seeking to hire workers, but unions often inform the employment businesses that industrial action is taking place in order to ensure that the employment business cannot claim to have no knowledge of it.
Finally, I point out to my hon. Friend the Member for Hayes and Harlington that other provisions in the Bill strengthen the enforcement of the conduct regulations. It is important to take account of them when judging the debate.
Clause 15 enables the more serious breaches of employment agency legislation to be prosecuted in the Crown court, where the maximum penalty would be an unlimited fine. Therefore, the consequences for employment businesses of breaching the conduct regulations could be a lot more serious in future.
Does my hon. Friend—and neighbour—accept that the UK is currently in breach of some parts of international labour standards conventions, to which this country is a signatory? We have ratified those conventions. If my hon. Friend accepts that, by what date will our country be in compliance with those conventions?
I thank my hon. Friend—and neighbour—for his intervention. His interventions are always helpful. I remind him that, as far as I am aware, we have not been censured by the International Labour Organisation on this issue, and that is an eloquent statement on this matter.
The other provision to which I want to draw the House’s attention is clause 16, which strengthens the investigatory powers of the employment agency standards inspectorate, for example by enabling inspectors to remove documents from the agency’s premises. Those provisions will enable inspectors to obtain more readily the relevant records of numbers of agency workers supplied during industrial disputes, and thus enhance inspectors’ ability to investigate such complaints. In conclusion—
My hon. Friend mentioned the strengthening measures in clause 15, which would mean that people could go to the Crown court. Given the example that my hon. Friend the Member for Hayes and Harlington (John McDonnell) gave about Royal Mail, does the Minister expect anybody from Royal Mail to end up in the Crown court?
That is not a decision for me. That would be how the law applied if somebody took up a complaint that was thought to be strong enough to merit that.
In conclusion, I am aware of some of the representations that have been made. We are always happy to look into these things, but I am afraid that I cannot accept the new clauses. My hon. Friend the Member for Hayes and Harlington has said that he wants to press one of them to a vote, but I am afraid that I shall have to ask colleagues to oppose it.
I shall be brief, because there is much important business that we need to reach tonight. I am disappointed by the complete absence of movement on any of these issues—even after the intervention of my hon. Friend the Member for Manchester, Central (Tony Lloyd). I was expecting a form of words that would enable us to move forward.
On the first issue of unfair dismissal and detriment during an industrial dispute, some of us might live in different worlds, but in my constituency and across the country people have been sacked unfairly on a number of occasions. They do not feel that they have the appropriate protections. My hon. Friend the Member for Wolverhampton, South-West (Rob Marris) made a point about international law and ILO conventions, and yes, we are in breach of them. We have consistently been in breach of them. Various international reports, which I listed earlier, have emphasised that point. We no longer have the standards of industrial and trade union rights in this country that apply across the rest of Europe. I was simply seeking to ensure that there would at least be a power for reinstatement. My right hon. Friend the Member for Makerfield (Mr. McCartney) raised the issue of reinstatement and said that in some instances that would be detrimental to the individual. Under new clause 1, that would have happened only if the complainant wished to be reinstated. It offered flexibility, so that there would be the right to secure one’s job again.
I am also disappointed that there has been no movement on balloting. I acknowledged that the Government have taken steps on two occasions, in 1999 and 2004. We have cited example after example to show that in practice those steps have not enabled the democratic wishes of trade unionists undertaking a ballot to enable action to take place on the majority vote. The flexibility that we thought that we secured when I supported the Government in 1999 and 2004 is not being applied by the courts. We have given example after example of that.
An example was given that involved the buses. It is not just about employers having a duty to provide information in ballots. New clause 2 would place a duty on the employer “reasonably to co-operate generally” with a trade union while it engages in balloting action to test the wishes of its members. I do not believe that we have had an acceptable answer that demonstrates that the Government would even consider a timetable for addressing the practical problems that trade unions experience in this country.
We gave example after example of what agency workers have done to undermine industrial relations in this country. Let me give an example from my constituency. Before a dispute even took place, the employer, Gate Gourmet, went out and recruited agency workers and then herded my constituents into a shed and gave them three minutes to decide whether they would accept reduced wages and conditions. If they decided not to do so, they were replaced by agency workers. We are seeking to prevent such undermining. It does not just affect those individuals who are in dispute, but sours the industrial relations climate of this country.
We are appealing for some movement from the Government. The Minister said that he had received representations, but I was hoping that the Government would consider them seriously and that, after consultation, they would come forward with proposals to tackle the concrete problems of industrial relations and trade union rights in this country. I bitterly regret that they have not done so.
On that basis, and to save time this evening, I shall be happy to withdraw new clause 1. However, I wish to press new clause 2 on balloting procedures to a Division.
I beg to ask leave to withdraw the motion.
Motion and clause, by leave, withdrawn.
New Clause 2
Employer’s duties in relation to industrial action ballots
“The following section is inserted after section 226C of the Trade Union and Labour Relations (Consolidation) Act 1992—
“226D Employer’s duties in relation to industrial action ballots
(1) It is the duty of an employer reasonably to co-operate generally, in connection with a ballot conducted or proposed for the purposes of section 226, with the trade union (or unions) and the person appointed to conduct the ballot.
(2) Without prejudice to the generality of subsection (1), it is the duty of an employer to supply to a trade union in good time information reasonably requested by the trade union for the purposes of establishing the names, addresses, categories and workplaces of those members whom it wishes to ballot for the purposes of section 226.”.’.—[John McDonnell.]
Brought up, and read the First time.
Question put, That the clause be read a Second time:—
The House proceeded to a Division.
I ask the Serjeant at Arms to investigate the delay in the No Lobby.
New Clause 4
Time off for Workplace environmental representatives
‘(1) The Employment Act 2002 (c.22) is amended as follows—
(2) After section 43 there is inserted—
“43A Workplace Environmental Representatives
(1) An employer shall permit an employee of his who is—
(a) a member of an independent trade union recognised by the employer, and
(b) a workplace environmental representative of the trade union, to take reasonable time off during his working hours for any of the following purposes.
(2) The purposes are—
(a) carrying out any of the following activities—
(i) promoting environmentally sustainable workplace initiatives and practices,
(ii) carrying out environmental audits,
(iii) being consulted on workplace environmental policies, practices and management systems,
(iv) carrying out environmental risk assessments,
(b) consulting the employer about carrying out any such activities,
(c) preparing for any of the things mentioned in paragraphs (a) and (b).
(3) Subsection (1) only applies if—
(a) the trade union has given the employer notice in writing that the employee is a workplace environmental representative of the trade union, and
(b) the training condition is met in relation to him.
(4) The training condition is met if—
(a) the employee has undergone sufficient training to enable him to carry on the activities mentioned in subsection (2), and the trade union has given the employer notice in writing of that fact,
(b) the trade union has in the last six months given the employer notice in writing that the employee will be undergoing such training, or
(c) within six months of the trade union giving the employer notice in writing that the employee will be undergoing such training, the employee has done so, and the trade union has given the employer notice of that fact.
(5) Only one notice under subsection (4)(b) may be given in respect of any one employee.
(6) References in subsection (4) to sufficient training to carry out the activities mentioned in subsection (2) are to training that is sufficient for those purposes having regard to any relevant provision of a Code of Practice issued by ACAS or the Secretary of State.
(7) If an employer is required to permit an employee to take time off under subsection (1), he shall also permit the employee to take time off during his working hours for the following purposes—
(a) undergoing training which is relevant to his functions as a workplace environmental representative, and
(b) where the trade union has in the last six months given the employer notice under subsection (4)(b) in relation to the employee, undergoing such training as is mentioned in subsection (4)(a).
(8) The amount of time off which an employee is to be permitted to take under this section and the purposes for which, the occasions on which and any conditions subject to which time off may be so taken are those that are reasonable in all the circumstances having regard to any relevant provision of a Code of Practice issued by ACAS or the Secretary of State.
(9) An employee may present a complaint to an employment tribunal that his employer has failed to permit him to take time off as required by this section.
(10) References in subsection (2) to environmental audits and environmental risk assessments are to environmental audits and environmental risk assessments that are sufficient for those purposes having regard to any relevant provision of a Code of Practice issued by ACAS or the Secretary of State.
(11) In subsection (2)(a), the reference to qualifying members of the trade union is to members of the trade union—
(a) who are employees of the employer of a description in respect of which the union is recognised by the employer, and
(b) in relation to whom it is the function of the workplace environmental representative to act as such.
(12) For the purposes of this section, a person is a workplace environmental representative of a trade union if he is appointed or elected as such in accordance with its rules.’”’.—[John McDonnell.]
Brought up, and read the First time.
With this it will be convenient to discuss the following: new clause 6—Right not to be excluded or expelled from union: repeal—
‘In the Trade Union and Labour Relations (Consolidation) Act 1992 (c. 52) sections 174 to 177 (which make provision about the right to membership of trade union) are repealed.’.
Amendment No. 3, page 17, line 7, leave out clause 19.
Amendment No. 10, in clause 19, page 18, line 15, at end add—
‘(4) In section 177 (interpretation and other supplementary provision), 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 for the 12 months prior to the date of an individual’s application for membership of the trade union or at any point thereafter that individual is registered with the political party as a member.”’.
Amendment No. 11, page 18, line 15, clause 19, at end add—
‘(4) In section 177 (interpretation and other supplementary provision), 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 the party at the time of the individual’s application for membership of the trade union remains on such a register.”’.
Amendment No. 2, in schedule, page 21, line 21, at end add—
REPEALS RELATING TO SECTION (Right not to be excluded or expelled from union: repeal)
Short Title and chapter Extent of repeal Trade Union and Labour Relations (Consolidation) Act 1992 (c. 52) Sections 174 to 177.’.
Short Title and chapter
Extent of repeal
Trade Union and Labour Relations (Consolidation) Act 1992 (c. 52)
Sections 174 to 177.’.
Order. Would hon. Members who are not planning to listen or take part in the debate please leave the Chamber quietly and let us get on with it?
First, I pay tribute to the Public and Commercial Services Union. The new clause had its genesis in a conference of PCS environmental representatives last year. They discussed the role that they could play in tackling climate change, and the significant role of workplace representatives. The new clause therefore seeks to provide the right in law to time off work for trade union representatives who serve as environmental representatives. It would ensure reasonable time off to promote environmentally sustainable practices at work, carry out environmental audits, consult on environmental policies and carry out environmental risk assessments. It would also allow time off for training for environmental workplace representatives.
The law currently entitles trade union representatives to reasonable time off to fulfil trade union responsibilities regarding industrial relations and health and safety matters. That is covered by the ACAS code of practice on time off for trade union duties and activities. Trade unions are working in partnership with employers to play a greater role, particularly with regard to raising awareness of environmental issues, and to develop company policies on green workplace initiatives and practices. I give the example of PCS, which has a range of environmental representatives working in various Government Departments. Those representatives are increasingly active in developing policies to tackle climate change, prevent carbon emissions and improve the environmental standards in their workplaces. They have also established a national green forum.
Why is the issue important? Half of carbon emissions are work related. Businesses and other organisations therefore have a critical role to play in reducing emissions. Staff at all levels need to be involved. The collective action of employees, working with employers, can lead to changes in policy and individual behaviour. To date, many employers have been slow to implement carbon reduction policies and wider environmental measures. Policy statements may well have been produced, but they have not yet been translated into practical action. The Labour Research Department found that one in nine employers had comprehensive measures on energy efficiency in place. More than half did not provide any training on environmental issues, and fewer than a quarter had environmental management plans in place.
Trade unions are now developing their role to work with employers to ensure that they develop environmentally sustainable policies and practices within individual companies and organisations, and green—environmental—representatives from trade unions can play an important role in constructing and developing a practical agenda for implementation in the workplace. Staff are willing to get involved. A recent survey demonstrated their willingness to take action to reduce greenhouse gas emissions, and their feeling that employers are not doing enough and employees need more support from employers to develop those policies. In the House, two early-day motions on that issue have been tabled over the past two years, and the last one received the support of more than 102 Members.
We have ministerial support, too, for the unique role that trade unions can play. The Under-Secretary of State for Energy and Climate Change, my hon. Friend the Member for Lewisham, Deptford (Joan Ruddock), said:
“Trade Unions have a unique and valuable role to play in raising awareness and mobilising people to help us address the challenge of climate change… And I want to congratulate those Union Environmental Reps who have demonstrated how negotiating skills and experience can be used to support environmental outcomes”.
The Secretary of State for Environment, Food and Rural Affairs, who was formerly responsible for such environmental matters, said that he had seen
“at first hand the valuable role that union reps are playing… What is clear is that bottom-up union and employee led action can really make a difference.”
And, he said that he hoped that we could
“use these pilots to demonstrate to employers the benefits of working in partnership in this area.”
Employers themselves have welcomed the development of worker partnership on environmental policies. Mark Gregory, the resources director at Legal & General, made a specific commitment on employee partnership, saying:
“One of the most difficult areas in implementing any programme is engaging employees: without the active support of the union across the Group we would find this much harder to achieve.”
Similarly, we have examples from VCA, the vehicle certification agency, and a range of other employment organisations that value the role of environmental reps working within their organisation to tackle and develop environmental policies.
The TUC, and individual unions such as Connect, the National Union of Teachers, the National Union of Rail, Maritime and Transport Workers and the Public and Commercial Services Union, have all invested resources in training members to gain the expertise to contribute to tackling carbon emissions in this way. The Climate Change Bill, which we debated last month, set challenging targets on carbon emissions—an 80 per cent. cut by 2050. We all know how difficult that will be to reach, so we all need to fulfil our responsibilities and pull together.
The new clause would recognise the enthusiasm among the work force for tackling that challenge. Trade unions are eager to play their role, and the new clause would enable their representatives to have the resources and facilities to do so actively and in full. The Government need to recognise that—not dampen the enthusiasm of those who have become involved in such work through the trade unions—and respond constructively. On that basis, I urge the Government to consider the new clause for inclusion if not in this legislation, then in some subsequent Bill. It would enable people to use trade union facilities to develop their role as environmental representatives and to achieve environmental sustainability.
Looking at new clause 4, I wonder whether its promoters actually understand the meaning of work. The hon. Member for Hayes and Harlington (John McDonnell) seems to suggest that trade union members should be given special treatment, and that, where they take on more responsibilities, they should make excuses not to do their normal work in order to fulfil them. We find that unacceptable. Moreover, I received a letter dated 28 October 2008 from a Chris Baugh, the assistant general-secretary of PCS, in which he said that PCS had tabled an amendment to the Bill. I must say that I did not know that unions could table amendments in this place. Would the hon. Gentleman, who, presumably, is the PCS mouthpiece for this purpose, care to enlighten the House on the process that one must go through to become a workplace environmental rep?
Can we just take one step back to respond to that statement? I outlined how a trade union was acting constructively to tackle an agenda that the whole House has supported, namely climate change, and preparing for consideration by Members an amendment that we might wish to promote to ensure that the union was able to do so. I am the chair of the parliamentary PCS group, which is an all-party group. We promote the union’s views with which we obviously agree, and we consult unions. A number of Members from all parts of the House are members of various trade union groups, as I am, and, on an all-party basis, they listen to the views of the unions and, if they agree with them, bring them before the House. I thought that we should encourage organisations outside the House to engage constructively in the development of legislation. On that basis, I promote the new clause.
On that point, my hon. Friend knows that more than 90 per cent. of the funding of the modern Labour party comes from unions, so it is perhaps not surprising that they think they own those representatives who sit in this place.
On a point of order, Mr. Deputy Speaker. I think that allegations are being made that may relate to me personally. The allegation is that I have promoted a new clause on the basis of some financial link-up between the Labour party and PCS. That trade union is not affiliated to the Labour party, and the PCS parliamentary group is an all-party group.
Order. Perhaps the House could moderate its language a little. I am sure that the remarks were not directed directly at the hon. Gentleman. These really are not matters for the Chair; they are matters for debate.
If the hon. Gentleman will allow me, I shall make some little progress.
We need to look at whether appointments to the position would be handed down from the trade union headquarters, or whether members would be encouraged to volunteer. If it was the latter, which I suspect it would be, would trade unions advertise the fact that the role would be in addition to an employee’s usual duties, or would they promote the idea that the employer would be so pleased to have the employee acting as the union’s green policeman that he or she would be given time off?
The hon. Gentleman has demonstrated his lack of understanding of the real world and, in particular, of industrial relations—once more. Does he not accept that plenty of voluntary organisations send suggested amendments to Bills to the Conservative party as well as to other parties? And, does he not accept that enshrined in law, now, is an arrangement whereby health and safety representatives are allowed reasonable time off to carry out their duties? What is the difference?
I shall come to the difference in my later comments.
There are several problems with the new clause. First, every business should be involved with environmentally sound practices, but we fail to see why employees who have trade union membership should have time off work for environmental issues when their colleagues at the next workstation simply have to get on with their work. Secondly, we do not appreciate the way in which the new clause attempts to unionise environmental issues in the workplace. “Workplace environmental reps” smacks of Orwellian, Big Brother tactics by unions. By bringing the issue within their remit, they seem to be attempting to secure preferential treatment for their members and, at the same time, to give their union a point of leverage over the business. Finally, we fail to see why the actions in proposed new section 43A(2) to the Employment Act 2002 would be better carried out by a trade union than by a company. If the proposal is for the workplace environmental rep to be there to oversee the company’s own efforts, the new clause needs redrafting.
The Conservative party gave its support to the Climate Change Bill, which spelt out that the direction of change would specifically include the setting of annual carbon budgets, and that at some stage they would have to be translated into sectoral and company targets, so will the hon. Gentleman be kind enough to explain to the House the role that Conservative Members expect trade unions in a workplace to play in constructing the carbon budgets that the company seeks to introduce?
I am sure that trade unions can make constructive comments and talk with management and other third parties about how they think the workplace should be improved environmentally; that does not mean that we should legislate for time off.
I received a letter from the PCS in the run-up to today’s debate. It saw the role of the workplace environmental rep as
“ensuring that employers meet their carbon reduction targets, raising awareness of green issues in the workplace and ensuring that environmental issues are included in the bargaining agenda”.
I am still somewhat confused: what will the reps do that a company should not be doing anyway to bring itself in line with the Climate Change Bill? In these times of economic uncertainty, we must be careful in respect of the fundamental necessities. Continued employment, economic growth, financial stability and so on are all factors that must line up alongside the environment when we strike the balance. We support responsible, environmentally sound business practice, but we also support business efficiency and businesses’ freedom of choice on how best to reach their overall environmental targets. That is why we oppose the new clause.
I turn to clause 19, which deals with trade unions’ right to exclude people because they are members of certain political parties.
Order. I am not sure that we are dealing with clause 19 at the moment.
I do not mean to be unkind, but I can help the hon. Member for Huntingdon (Mr. Djanogly)—I think he was referring to new clause 6, which stands in my name and those of other hon. Members.
A principle lies behind the new clause and the associated amendments, and in their original formulation of the Bill the Government seemed to accept it. It is that there is a reality not only to the concept of freedom of association, but to that of the freedom not to associate. That concept is accepted by the Royal Society for the Prevention of Cruelty to Animals, which some years back expelled members with a pro-hunting agenda who had infiltrated it. It is also accepted by Churches; it would be inconceivable for people to be able to join a Church if they did not subscribe to its views. Furthermore, the concept is accepted by all political parties; mine has certainly sought to expel those whose aims are incompatible with its own. In that context, it is right and proper that the concepts of freedom of association and freedom not to associate should be exercisable by our trade unions.
The British National party is very much the subject of the new clause and amendments. The party itself makes it clear in its own articles of association that it will not accept certain people as members. For example, it does not accept the ethnically Asian or those who are of African or Caribbean origin. The BNP itself accepts that the freedom not to associate is legitimate. I would not normally ever pray the BNP in aid, but it is worth recognising that although it prohibits certain people from membership, it does not respect that principle in the context of the trade union movement.
In a BNP members’ bulletin, a party representative wrote that any BNP member who was not a union member should join one, and that:
“Those looking to be thrown out of a trade union and then getting a big five figure payout should make it known to the local union lefty that they are members and may be standing as candidates for the BNP.”
It later warned:
“You haven’t got long to get on this particular gravy train”.
The BNP is clear that it wants to infiltrate the trade union movement, not for the sake of membership of a democratic organisation whose objectives are the advancement of its members, but to subvert the union—as Nick Griffin, the BNP leader, said on the radio this very day—or to use it as a cash cow to finance BNP activities, or possibly those of its members.
We have to be very careful. The hon. Gentleman is talking specifically about the BNP, but this is a catch-all new clause. Perhaps a party that we have not even heard of now will want to start an environmental campaign; under this new clause, it could easily be excluded. The BNP is abhorrent and horrid, but we are discussing a catch-all new clause that could catch any other political party in future.
I shall not come to that point immediately, but if the hon. Gentleman bears with me I shall certainly address it towards the end of my remarks, because it is important.
Those who know the background to the judgment that has led to the Bill will regard what I am about to say as a little long-winded. However, it is important to place on record the fact that the background to this whole situation is a decision by the European Court of Human Rights, which is controversial among some Conservative Members, although not among Labour ones. The Court sat in judgment on a case between ASLEF and Jay Lee, a BNP member who was expelled from the union.
Industrial tribunals in the United Kingdom had held that the union had behaved unlawfully in expelling Mr. Lee. The Court, however, stated that:
“it is uncontroversial that religious bodies and political parties can generally regulate their membership to include only those who share their beliefs and ideals. Similarly, the right to join a union ‘for the protection of his interests’ cannot be interpreted as conferring a general right to join the union of one’s choice irrespective of the rules of the union: in the exercise of their rights under Article 11 § 1 unions must remain free to decide, in accordance with union rules, questions concerning admission to and expulsion from the union”.
The Court made a clear decision that ASLEF’s action was legitimate. To return to the point made by the hon. Member for Hemel Hempstead (Mike Penning), I should emphasise that the Court said that unions must remain free to decide in accordance with union rules; that is an important conditioner of union behaviour and of what the law means. The Court’s decision was unequivocal. It went on to say that any restriction on a union’s right to expel should be proportionate.
Let me concede at this point that the Government’s intentions have been proper: to make domestic law consistent with the judgment of the ECHR. Nothing lies between the Minister and other Labour Members—and, I hope, others across the House—in wanting that ambition to be achieved. As I said, when it made its first progress in the House of Lords, the Bill had a form of words that would have been acceptable to all parties, certainly to the Government and Labour Members. At that point the Government view was, rightly, that the combination of existing statute, union rule books, unions’ legal obligation to conform to their rule books, and the capacity of the certification officer to rule on what the unions did, provided adequate protection against arbitrary or unfair expulsion or a refusal to accept for membership not BNP members but Conservative trade unionists, perhaps, or those from certain religious backgrounds.
There is already protection against such arbitrariness in the law, save where it is clear in the rule book that that expulsion can take place in a way that is consistent with that rule book. I would say to the hon. Member for Hemel Hempstead that under the clause as it stands, or under the amendment, the capacity of the union to change its rules to expel a member of the Labour party, for example, still exists. Under any of these formulations, it would be possible for a union to expel a member for political or other reasons as long as that was consistent with the rules.
However, it is almost inconceivable that that would take place in a society such as ours. There is no evidence that any member of the Conservative party has ever been expelled by any trade union—the Fire Brigades Union or any other—or that people have been expelled from trade unions for being members of the Labour party. That is because the values of the Conservative party, even though I do not share them, are consistent with the objectives of British trade unions—as are, clearly, the values of the Labour party. There is no inconsistency there; the inconsistency comes with a party that is avowedly fascist and does not share the ambitions of the trade unions for equality among their members—those who are black or Asian, as well as those who are not black or Asian or are from any other minority ethnic community but share the anti-racist values of those unions.
The problem with the amendments that the Government accepted in the House of Lords is that they have moved the agenda on to give too much protection to the individual who feels disgruntled by this process at the expense of the rights of the collective. In particular, these changes ignore the general principle of the right of any organisation—political party, charity or trade union—to freedom of association or freedom not to associate. The interests of an individual fascist who does not want to be a member of the same union as black, Jewish or Asian colleagues are put ahead of the rights of those black, Jewish or Asian colleagues not to want to be a member of a trade union with a fascist involved. That is an important freedom that is being eroded.
The problem is that picking on a specific party—I do not want to give it too much oxygen—does not prevent someone who is openly fascist from being a member of a trade union. The danger lies in picking on a political party rather than an individual. As I understand it, this is not about the BNP but about abhorrent views of individuals. That is where the provisions should be much tighter.
I am not sure whether the hon. Gentleman is disagreeing with me, but perhaps that is because I did not properly understand what he was saying.
Let me go back to the expulsion of Jay Lee. The question now arises whether the way in which he was expelled by ASLEF would be consistent with the law as it will be under the Bill as drafted. Jay Lee was a member of the BNP—there is no ambiguity about that. ASLEF’s rule book says that
“no person shall be admitted into membership of ASLEF if by choice they are members of, supporters of, or sympathisers with, organisations which are diametrically opposed to the objects of the union, such as a fascist organisation”.
That focuses more on racism than on naming the BNP, and there are good reasons for not naming the BNP. ASLEF’s rules clearly state that membership of ASLEF is incompatible with being a member of a fascist organisation. Jay Lee undoubtedly was such a person, and ASLEF resolved at its conference to expel him. That was consistent with its rule book, and the European Court held that it was a legitimate and legal thing for it to do.
It is arguable under the Bill as it stands that because the union rule book does not mention the BNP by name, it would not be possible to have expelled Jay Lee from ASLEF. I think that the hon. Member for Hemel Hempstead was with me in saying that we should be considering fascists, not just members of the BNP. In that case, he may find himself, surprisingly, on the same side as me in hoping that the Government will move on this. It is likely that the situation involving Jay Lee would still be found under domestic law to be outside the law, even though the European Court has clearly determined that it is within the terms of the European convention on human rights and therefore European law. There is a potential contradiction between the Bill and our existing law, which is of course guided by the European convention.
Clause 19(2) states:
“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 is contrary to—
(a) a rule of the trade union, or
(b) an objective of the trade union.”
It also says that such conduct is allowable only if membership of a named political party is in the union’s rule book or objectives. The problem is that it is not beyond the realms of credibility for a political party, the BNP or any other, continually to go through the game of changing its name—to BNP 08, BNP 09, the NBP, the PNB, whatever it may be—so as to always be one step ahead of any union rule book. Almost inevitably, the ability to change a union’s rule book is not an instantaneous process. This is not Adam Smith’s invisible hand—it has to take place at certain moments. I therefore fear that the fascist party can always be one step ahead of the union.
I am reluctant to intervene on my hon. Friend, because I am conscious that I am going to get my chance to speak later, but he is making an important point. It is not the Government’s view that the clause requires the union to name the political party in its rule book. The clause says that this is about
“Conduct which consists in an individual’s being or having been a member of a political party”
if that membership is contrary to the rules and objectives of the union. It is the membership of the political party that would be contrary to the rules and objectives of the union. That does not mean that the party has to be named, but there is a contrast between membership of that party and the general ideological position as set out by the union in its rules and objectives.
I am grateful to my hon. Friend. I know that part of the difference between us is how this is interpreted. I am not concerned about whether he says that that is his intention but about whether the words in the Bill will be interpreted in that way by a tribunal or a court. [Interruption.] I can hear my hon. Friend the Member for Hendon (Mr. Dismore) muttering from a sedentary position. I will give way to him in a few moments if he wishes.
A considerable and serious body of legal opinion has considered this and said that what the Minister has set out will not be how the Bill is interpreted and that there is ambiguity in its wording.
I am grateful to the hon. Gentleman for giving way, and he is making a persuasive argument, but I put it to him that for many—including me, I suppose—the impact of communism was just as evil and damaging as that of fascism. I ask him to beware of the way in which this power might be used. It might be perfectly possible for a union in right-of-centre hands to proscribe membership of the Communist party, or any other party that is considered extreme at the time. I also put it to the hon. Gentleman that, unlike a church or a club, trade unionism is directly linked to someone’s employment and means of making a living. It is in a different category, and I ask him to reconsider.
Let me answer that simply. I do not think that what the hon. Gentleman refers to is different from a political party. Hopefully, our great political parties have a great material impact on the people of this country, and I would not want to allow the suggestion to run abroad that being a member of a political party is trivial, or membership of a Church for that matter. The Royal Society for the Prevention of Cruelty to Animals, which has specific ambitions, expelled some members whose expulsion was held to be legal because it was consistent with what that organisation sought to do.
I would like to back up the point of my hon. Friend the Minister. I do not see any reading of clause 19 that supports the idea that a political party would have to be named in the union’s rules. To support what the Minister said, clause 19 says that conduct has to be contrary to a rule or an objective, not a rule and an objective, so it catches rather more than the Minister suggested.
Yes, except for the fact that, as my hon. Friend knows, some good legal opinion says, “We do not know what an objective means.” It is not well defined in the Bill or more generally. We know what the rule book is, but to talk about the objectives of the union is to talk about an amorphous concept. With great respect to my hon. Friend, I know that he has far more legal experience than I have, but he does not have more legal experience than all the lawyers I have spoken to. He and other lawyers disagree, which does not mean to say that he is wrong, but he and my hon. Friend the Minister have to reflect on the fact that if lawyers are disagreeing at this point, the Bill is not good law. That is the issue we have to address.
It could indeed be a lobbying organisation if, as in the case of ASLEF, it is a membership organisation that is fascist. That touches on what we are seeking to achieve. The ASLEF rulebook was consistent with its ambition to drive racists out of the union because they are incompatible with the rest of its members. It is important that it can so proscribe, which is why we do not want to build into the Bill the need to name the BNP or whatever. There is obviously a dispute between us as to whether that is necessary.
Sometimes in the trade union movement we are in danger, if we are not careful, of taking an opinion from a lawyer and placing it against another lawyer’s opinion while failing to have an opinion ourselves. What we have here is a victory plus, if my hon. Friend does not mind me saying so. The big thing about the fascist movement is that it will always split—the National Front, the BNP and so on. Someone else will come along. The issue is whether the judgment gives the capacity for trade unions to establish principles in law and practice to defend themselves against infiltration by organisations or individuals representing organisations. The fact of the matter is that it will. If we had listened to all the lawyers in 1999, we would never have passed the legislation that some people have been arguing about tonight.
My right hon. Friend knows that he and I have great mutual respect, admiration and all the rest of it, but that does not mean to say that he is right in this case. [Interruption.] Neither he nor I is a lawyer, so we have a big advantage. It is precisely because lawyers clashed on the matter in the first place that we ended up with the ASLEF decision going to the industrial tribunal. The tribunal made its decision, but it was overturned at the European court, and that was not because lawyers disagreed over some academic legal exercise. Sometimes, lawyers disagree about the most profound issues that affect real people’s lives. That is what we are talking about.
If the Bill were definitely a plus plus, I would happily be on the same side as my hon. Friend the Minister and my right hon. Friend the Member for Makerfield (Mr. McCartney). The problem is that there is a real concern that the law is not workable, which is the real difficulty. If it is not workable, and it does not allow a trade union to exercise what the House wants it to exercise, we are not writing good law. It is the duty of this House not to quibble about what lawyers say—I agree with my right hon. Friend on that—but to quibble about what the law will do in practice. That is the issue before us.
With great respect, these are interesting debating points, but they are not serious debating points. As I said to the hon. Member for Hemel Hempstead, if we are determined to capture fascist organisations—[Interruption.] I think that the hon. Member for Huntingdon may have given it away, because he said he is not in favour of capturing fascist organisations. That is the difference. Those in my party want unions to have the capacity to expel members of the BNP—people who are racist and fascist—from their membership.
I am simply going to qualify the hon. Gentleman’s remark on what he thinks I believe, which is not at all correct. We simply say that the clause will catch all organisations: fascist, communist or Greenpeace. Even Conservatives and Liberal Democrats could be banned under the clause.
I do not think that I shall comment on the point of my right hon. Friend the Member for Makerfield, except to acknowledge it, which means it will now appear in the Official Report.
Under the Bill, or my new clause, it would always be possible for the rules to be drawn up to exclude people in a way that most of us would regard as unfair—that is right. But it would require an open debate in our society, of the kind we are having today, about the exclusion of fascists, and about whether it is right and proper to exclude members of the Labour party, the Conservative party, Christian Scientists or whatever. I must say this, however: no trade union has ever gone down that road. Neither the hon. Member for Huntingdon nor any of his friends can give me an example of where trade unions have sought to expel someone for being a member of the Conservative party, the Liberal Democrats or any other mainstream political party. This is a very specific situation. We must not prevent the House from giving trade unions the proper capacity to do what they ought to on behalf of their members by raising the bogus spectre of unions abusing a power they have never sought, or sought to abuse.
May I kindly suggest that my hon. Friend should not get too bogged down in what the Opposition are saying because they do not seem to be aware of his position? His amendment No. 3 would remove clause 19 from the Bill. I say to the Opposition that my hon. Friend is not seeking to defend the wording in clause 19 in any way; he is seeking to remove it. If they had bothered to read the Order Paper, which the hon. Member for Huntingdon (Mr. Djanogly) clearly had not—he would not have got lost otherwise—they would realise what my hon. Friend’s position is.
I think that the hon. Member for Huntingdon wants to make another speech—if he is able to catch your eye, Mr. Deputy Speaker—so perhaps when he does, he might want to clarify the Conservative party’s position. It seems that he is arguing not only against clause 19, but the amendments and anything that would give powers to trade unions to expel members of the BNP. That is the important distinction. Those in my party, including the Minister and me, want the same objective, which is to give trade unions the proper capacity to expel.
The Government do not seem to understand that the critical principle is not about membership of a political party but about active racism and fascism. The case that the Attorney-General recently prosecuted provided a good example of the sort of person whom unions would not want as a member. A fascist was prosecuted for the first time in this country for uploading a neo-Nazi website from America that would have been banned in this country. Is not that precisely the sort of person whom unions should have the right, in principle, to exclude from membership?
The hon. Gentleman said that we opposed clause 19—that is not the case. The Conservative party appreciates and respects the finding of the European Court of Human Rights. Indeed, the clause that we are discussing is a compromise provision that Liberal Democrats and Conservatives in the other place proposed. Our opinion is that it still needs refining.
We are at one about that, but I do not know whether the hon. Gentleman’s definition of refinement and mine are the same.
There are serious doubts about whether the Bill as it stands achieves what we all support—compatibility with the European Court’s decision, and unions’ ability to expel fascists from their organisation. However, the serious concerns apply not only to the measure’s overall structure but more narrowly to the belt and braces of the clause. As I said to my hon. Friend the Member for Hendon, there is a genuine question about what “objectives” mean and how the word is interpreted. He shakes his head, and he may want to comment further when he makes a speech, but the point has been made by reputable members of his profession. Although I accept the injunction of my right hon. Friend the Member for Makerfield not to take seriously questions between lawyers, it is important that we know what we are talking about when considering clause 19.
There are concerns about the Bill’s rigidity and inflexibility, especially the provision to protect those who are excluded—not expelled—from joining, which would not apply to any other organisation. The European Court of Human Rights did not ask for a would-be member of a union who was turned down because of membership of a fascist organisation to be given a hearing about the reason for the refusal. That is unlike anything that would happen in other organisations. If the Conservative party decided not to accept someone, it would not hold a hearing to determine whether that was right and proper.
Clause 19 also uses the words, “exceptional hardship”. We know what exceptional hardship means for someone who loses a job—that concept is clearly understood. However, exceptional hardship for being refused membership of a union is not well defined. We do not know how a court would define it. That creates ambiguity for any union that tries to use clause 19, yet we have been told that the provision is straightforward. Will the ambiguity mean that unions would not use the provision, and therefore not have the power that we want to give them? If they used the provision, would they risk being taken before a tribunal?
Why does the Bill use the same terms as those that relate specifically to somebody losing a job? Under existing law, which the Government introduced, it is illegal for an employer to sack somebody for non-membership of a trade union. We got rid of the closed shop many years ago in 1992. The reason for such protection is therefore not obvious.
I also wish to ask about the amount of compensation. The sum of £6,900 for someone who manages to find a technical fault in the process whereby a union excludes or expels is a heavy penalty for the union, and brings us back to the British nationalists’ advice to their members: “If you’re not a member of a union, then join.” Those who look to be thrown out to get a big five-figure pay-out should make it known to the local union that they are BNP members. The BNP clearly perceives such legislation as a cash cow that can fund the party.
My question is, why should there be compensation at all in the case that we are considering? However, as my hon. Friend says, why is it out of line with other forms of compensation?
If new clause 6 were adopted instead of the current provisions, it would grant the flexibility that the hon. Member for Hemel Hempstead seeks. It would provide for a much more general process that was consistent with the union rule book. The union rule book could—as the ASLEF rule book did—specify that
“no person shall be admitted into membership… if… they are members of, supporters of, or sympathisers with organisations which are diametrically opposed to objects of the union, such as a fascist organisation”.
That is clear, albeit general, and covers the problem of rotating party membership. It would grant genuine protection to those who sought it against arbitrary and unfair expulsion or exclusion because of membership of other parties—the Labour party, the Conservative party and so on. The union would be restricted by the rule book and by statute, which would insist on proper reference to the due procedures of a trade union. There are also the principles of natural justice and the role of the certification officer, who has stronger powers in a trade union than the equivalent in a private company. I therefore believe that, for example, the Conservative trade unionist and the Labour trade unionist are protected. The new clause is specifically about unions invoking their rule book to get rid of or not accept those who are avowedly fascist. We should all share that ambition.
I therefore recommend that my hon. Friend the Minister revert to the law before it was changed, as set out in new clause 6. If he cannot accept the new clause, he must demonstrate how the genuine doubts that have been raised about the workability of clause 19 can be properly addressed. We cannot find that we have not moved matters on—that would be a victory not only for those who want to amend the measure in the wrong way, but for the BNP and its supporters.
I welcome new clause 4, which the hon. Member for Hayes and Harlington (John McDonnell) tabled. The idea of workplace environmental representatives constitutes reasonable and balanced policy, which is in line with our party’s ethos on environmental sustainability, health and safety and the importance of corporate social responsibility. I note that the hon. Gentleman tabled a related amendment to the Climate Change Bill, which was not picked up. However, my party is very happy to support his new clause.
New clause 6 would repeal outright those provisions in the Trade Union and Labour Relations (Consolidation) Act 1992 that provide for individuals employed in industries that require union members not to be unreasonably excluded or expelled from any trade union. I have a great deal of sympathy for the comments that the hon. Member for Manchester, Central (Tony Lloyd) made, but the proposal ignores the European Court of Human Rights judgment in ASLEF v. the UK, to which he referred at some length. I will not go into that, but noble Lords from all parties in the other place worked hard to construct the current law, including the noble Lord Morris, so unfortunately we are not in a position to support new clause 6.
Clause 19 may not be perfect, but the best brains from all parties in the Lords worked hard to draft amendments that were acceptable. Therefore, we cannot support amendment No. 3.
Amendment No. 10 calls for an individual’s membership of a political party to become relevant only if it fell within the 12 months prior to their application for membership of a trade union. I can completely understand the reasoning behind the amendment. If someone became a member of an unacceptable party such as the BNP when they were 15 and then wished to join a trade union at 40, it seems unfair that they should be penalised.
However, there is another side to the argument. A trade union should have the right to expel whomever it feels it wants to expel. Imposing conditions such as those in amendments Nos. 10 and 11 would amount to the Government telling trade unions whom they could and could not have as members. If the Government starting telling political parties whom they could and could not have as members, they would not countenance such interference.
But political parties can decide to exclude someone. If someone brought our party into disrepute, they could be excluded, including for something that they had done before joining. I am sure that the same is true for the Labour party, although I do not know about the Liberals.
I am not sure that I get the hon. Gentleman’s drift. My point is that any party or trade union should have the right to expel whomever it feels should be expelled. Of course there need to be safeguards, however, and that is completely understood.
The principle behind amendment No. 11 is the same. The trade unions should be allowed to exclude whomever they please. If we are talking about a new party that is not yet registered or a party that is changing its name in order to get round the rules, it should still be possible for trade unions to exclude whomever they feel it appropriate to exclude, without being placed in a straitjacket. It is up to trade unions to decide, just as it is up to political parties to decide.
I rise to speak primarily to new clause 6, but I also want to say a few words about new clause 4, to which I am a signatory, in order to respond to the rather weird tirade that we heard from the Conservative Front Bench on the issue.
Delivering the green agenda in the workplace can be done only in co-operation with the work force and the unions, even if it just means persuading people to turn the light bulbs off when they go home. To suggest that the activities set out in proposed new section 43A(2) to the Employment Act 2002, such as consulting on the workplace environment, should not be done in the firm’s time, given that the environmental reps will have to negotiate with the employer about the issue, is frankly ludicrous. I therefore support new clause 4.
My real reason for speaking is to address new clause 6 and the ASLEF judgment. The Joint Committee on Human Rights, which I chair, a little while ago published a scrutiny report on the issue—our 17th report of the Session. I apologise to the House that the report was not tagged on to today’s debate, which it perhaps ought to have been, because it deals at length with the ASLEF judgment and its implications. When the ASLEF case went through the European Court of Human Rights, the Government rightly accepted the need to amend the law in the light of that Strasbourg judgment. They consulted on two options, the first of which was effectively the option proposed by my hon. Friend the Member for Manchester, Central (Tony Lloyd) and the second of which was not quite the option in clause 19. That was the right thing to do.
When we scrutinised the issue in our Committee, my view was very much along the lines of my hon. Friend’s view. Having practised in that area of law and written a number of union rule books, I thought that the existing safeguards were adequate. The historic safeguard is the fact that the union rulebook is a contract with the membership that is subject to enforcement through contractual law and natural justice, and more latterly through the certification officer process. We discussed the issue at some length, having the benefit of advice from our legal adviser and the opportunity to look at some of the other debates. I came to the conclusion that we simply could not rely on the traditional safeguards.
The first point is about the possible impact on other political parties. The debate has focused on the BNP, but the risk is that the provisions could go beyond. We have heard a pretty anti-union tirade from the Conservative party tonight, which has reverted to type. It has been said that the Conservative party is not against the objectives and rules of most unions, but the way that it is going, one could easily see it slipping into being against such things, given its anti-union attitude.
In the 1950s, communists were expelled from unions wholesale, and particularly from the electricians union. So this has happened before, but to the left, not the right. That is why we have to be very careful about proceeding on such a basis. The Communist party might be a fringe party now, rather than the industrial power that it was in the 1950s, but the Socialist Workers party, for example, is very active in some trade unions and organises in those unions on a political level. We have heard, too, about other campaigners being affected. For example, animal rights campaigners might set up a party to campaign in unions involved in scientific industries, which could cause significant difficulties.
We need to consider what the ASLEF judgment said. It said what my hon. Friend the Member for Manchester, Central has already described, but it also said that
“the State must nonetheless protect the individual against any abuse of a dominant position by trade unions”
and then set out the need for appropriate safeguards. It is interesting that when we discussed the issue in my Committee, Lord Morris, the former general secretary of the Transport and General Workers Union, an influential trade unionist in his time and a man with immense experience of trade unions, was concerned about the lack of additional safeguards. I should also pray in aid Lord Wedderburn of Charlton, my old law professor from decades ago and probably the doyenne of trade union law, who also expressed his concerns in debates in the House of Lords about the lack of additional safeguards. As a result, my Committee proposed an amendment. A member of my Committee from the Liberal Democrat Benches, Lord Lester, also proposed his own amendment, which Lord Wedderburn thought was rather good, because it was as narrow as we could get, while also concomitant with the need for appropriate safeguards.
The problem with the proposal of my hon. Friend the Member for Manchester, Central is that, while it might rectify some of the incompatibilities, it does not deal with the need for appropriate safeguards. For example, none of the existing safeguards—the contractual rulebook safeguard and the certification officer safeguard—is available to deal with a person who is excluded from trade union membership in the first place, as opposed to having been expelled. Such a person cannot go to the certification officer, and they cannot go to court for a breach of the union rules.
I hope that we will pay attention to the issue of human rights in these circumstances. Sometimes, human rights can be a little inconvenient for us on the left, as well. There is clearly a positive obligation under human rights law to provide safeguards against abuse, and that is why my Committee proposed an amendment. My problem is that clause 19, as it stands, goes rather further than that amendment. My hon. Friend has made some quite trenchant criticisms of certain aspects of clause 19. I disagree with his point about the rules and objectives of the unions. Having written union rule books, I think it is pretty clear that most of them have clear objectives at the start of the rules, and that the rules are clear. They normally deal with the process, rather than the politics.
The part of clause 19 that states
“ if it is not reasonably practicable for the objective”—
of the union—
“to be ascertained”
contains some rather woolly wording that we do not actually need. Also, the part that deals with the process issues contains rather more detail than is necessary.
Ideally, the Bill should not have started out in the House of Lords. We should have started it off in the Commons, and it could then have gone backwards and forwards. My main concern is that we are now caught between a rock and a hard place—that is, between my hon. Friend’s new clause, which I do not think is human-rights compliant, and clause 19, which probably is human-rights compliant from the safeguards point of view, but which might go a little too far from the ASLEF judgment point of view. Neither option before us is ideal.
My real concern is for the Bill as a whole. If we were to agree to my hon. Friend’s new clause, we would inevitably end up engaging in ping-pong with the House of Lords, and the House of Lords has made it pretty clear that it is not going to go down the route suggested by my hon. Friend. We would therefore run the risk of losing all the good stuff in the Bill as well. On balance, therefore, my view is that we should leave clause 19—imperfect though it is—in the Bill.
What the hon. Gentleman says is fair, but we on the Committee recognised that this was going to be a question of compromise. We have not got the exact wording that we wanted, but it is fair to say that, although it is not perfect, clause 19 is much closer to what we wanted. We were unanimous on this—Conservatives, Liberal Democrats, peers, Labour Members, commoners and, indeed, the Cross Benchers. This is a complex issue, and the wording in the Bill is never going to suit everyone, but it is the best possible wording that we could get.
I am not sure that it is the best possible wording that we could get, but, in practical terms, the risk involved in not accepting clause 19 as it stands is greater than the problems that would follow if we were to go down the route proposed by my hon. Friend the Member for Manchester, Central in his new clause. Clause 19 is probably closer to the perspective of human rights, and the interpretation of the decision of the European Court of Human Rights in the ASLEF judgment, than my hon. Friend’s new clause.
My hon. Friend has mentioned problems that would arise from the new clause with respect to members of other political parties. Which part of clause 19 would prevent a union from introducing into its rule book a provision that being a member of, say, the Labour party was incompatible with union membership?
There is a catch-all provision in proposed new subsection (4G) relating to circumstances in which
“the decision to exclude or expel is taken unfairly”,
and the subsequent hardship provisions provide additional safeguards, which my hon. Friend’s new clause would not do. The additional safeguards in clause 19 are the kind of safeguards that the Joint Committee on Human Rights report talked about, and that the ASLEF judgment hinted at. On balance, I think that we have to leave clause 19 in place—imperfect though it is—rather than adopting my hon. Friend’s new clause, even though he and I wish to obtain the same objective in the end.
I should like to speak to amendments Nos. 10 and 11, tabled in the name of my hon. Friend the Member for Huntingdon (Mr. Djanogly). By way of background, clause 19 gives trade unions the right to exclude or expel individuals on the basis of their membership of a political party, subject to several safeguards, which are set out in the relevant subsections. This was debated at some length in Committee, and numerous hon. Members participated in that part of the Committee proceedings, recognising the fundamental importance of the rights that were being debated. We recognised the potential conflict between two fundamental civil liberties: the right to freedom of association and an individual’s right to a political belief, unhindered by arbitrary interference by public authorities.
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. That section was itself introduced as an amendment by section 14 of the Trade Union Reform and Employment Rights Act 1993. The section was subsequently amended again in considerable detail by the Employment Relations Act 2004. Those changes made it clear that it was lawful for trade unions to exclude or expel individuals on the ground of their political party activities—that is, their conduct. In Committee, we agreed with the right of unions to end membership on the ground of conduct, but not on the ground of belief. So, despite the best efforts of this House and of the other place, when passing that legislation to balance the competing rights of the individual and the trade unions, the European Court of Human Rights—in its decision on ASLEF v. the United Kingdom—felt that we had not struck the right balance.
We have been discussing new clause 6 and amendment No. 3, tabled in the name of the hon. Member for Manchester, Central (Tony Lloyd). We believe that their combined effect would be to take us back to the pre-1992 position. We would have to disregard the decision in the ASLEF case, and to forget about the need even for a human rights dimension, in allowing trade unions to expel or exclude members at will. These proposals run contrary to the Conservative view of employee-employer relations. On one level, however, their effect would be to force the Government to reassess this whole area, and perhaps that is what hon. Members truly wish to legislate for.
Attractive as that proposal might be, however, it is unfortunately unworkable. Our real concern with these amendments is that they would once again make quasi-legislation out of trade union rule books. In the past decade, we have moved away from that towards what must be the correct position: the rule book acting as a contract between the trade union and the employee. If we now seek to return to the old ways, we should force the courts into interpreting trade union rule books just as they interpret statute in employment proceedings. That would not only set the employment relations process back 10 or 15 years; it will also place the courts in a very difficult position and open the floodgates for further litigation.
I will not give way.
Too many advances have been made since 1992 for us to return to that position. We therefore oppose those amendments.
We accept the legal authority of the decision of the European Court of Human Rights in the ASLEF case, but we would like to put on record our deep unease with it. To our mind, it marks a further erosion of personal civil liberties by an organisation whose remit is supposedly to protect them. Here we have a court of human rights reining in the freedoms of an individual.
Amendment No. 10 seeks to place a limit on how far back a trade union is entitled to look into a member’s past to find reasons to exclude or expel that person. I accept that this is a question of balancing interests, proportionately and in a common-sense fashion. We recognise that, with time, people change, that their views change and their actions are adapted. As we pointed out in Committee, membership of the Campaign for Nuclear Disarmament as a student in the ’60s should not automatically allow a 50-year-old to be expelled from a trade union that represents workers in the nuclear industry—
I am not giving way.
In Committee, the hon. Member for Broxtowe (Dr. Palmer) was kind enough to give us a practical example, when he said:
“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”.––[Official Report, Employment Public Bill Committee, 16 October 2008; c. 79.]
We agree with his concern. The Bill’s provisions seem at odds with a person’s human rights, so our amendment would address that wrong by saying that party membership must have been within the 12 months prior to an individual’s application for trade union membership. On the advice of a number of hon. Members in Committee, we have also tightened the drafting to include future party membership. We hope that that will satisfy other concerns that had been expressed. It seems unfair to us that the union’s right to expel should last for ever. Amendment No. 10 would deal with that concern and I give notice of my intention to press it to a Division.
Amendment No. 11 also addresses our ongoing concerns about the definition of what constitutes a political party, because, as things stand, there is no definition in the Bill, so we believe we are in real danger of enacting a clause that has a far more damaging effect than it should have. We need to ask at what point a person’s associations become more indicative of their beliefs than their individual conduct or characteristics. Several members of the Committee noted that although they were members of one of the main political parties, they did not necessarily agree with the entirety of their party’s views. We know that political parties are broad churches, but I fear that we are danger of tarring all with the same brush.
The choice to become a member of a political party is an active choice and a definite action, but it might be inspired by any number of reasons. I wonder how many new Labour party members who joined around 1997 in the heyday of Mr. Blair now find themselves in a very different party, as we have seen this evening, putting forward 1970s-style trade union legislation. Clause 19 is a recipe for disaster.
I agree with those hon. Members who believe that we should be worried about the British National party, but we may be missing the wood for the trees. We reminded members of the Committee that the right hon. Member for Holborn and St. Pancras (Frank Dobson) supported original legislation to protect communists and their fellow travellers from being hounded out of the unions, so although we can talk about countering the BNP, we must not think that legislation is the only means of doing so. It is not, and many other organisations could be caught in that legislative net.
Given the position in which we find ourselves, we need carefully to regulate who will be caught, which is why we suggest limiting expulsion rights to registered members of political parties. We accept that the proposal has flaws—personally, I have real sympathy with some of the ideas expressed in Committee, especially on extreme political groups such as Combat 18 or the Militant Tendency, which would fall outside my definition of a political party—but we have to understand that we are debating this on the back of the ASLEF decision. Since 1993, as the Minister rightly noted in Committee, the unions have had the power to expel or exclude an individual on the basis of their conduct. The clause deals expressly with political party membership—the very issue at stake in the ASLEF case.
When we fall within the wide parameters of democracy, the spectrum of beliefs is very broad and the question becomes where we draw the line and who draws it. We must be careful not to allow the Bill to creep into areas that it is not designed to cover. The ASLEF decision dealt only with expulsion or exclusion on the basis of political party membership, not on the basis of conduct or association with a group. We must ensure that we draw the line at a reasonable place, and I believe that our amendment does just that. If we do not say that the provisions should apply to registered members of political parties, to whom will they apply—people who wear Nazi insignia or Che Guevara T-shirts or who are known to associate with extremists? I fear that we may end up with trade union witch hunts in which members who show even the slightest diversion from the party line find themselves out on their ear.
As with much of the Bill, we are being forced to accept the lesser of two evils. For us, certainty is preferable. One thing is for sure: as things stand, clause 19 is inviting court cases to decide what constitutes a political party—and many extreme groups have shown themselves only too happy to go to court over such matters. The amendment will, I hope, provide less room for them to do so.
I rise to support clause 19. My hon. Friend the Member for Dagenham (Jon Cruddas)—he has unfortunately left the Chamber for a few minutes, but has been in his place since the debate started—and I spent time in 1997 and 2007 working on an almost daily basis with Government lawyers, trade union lawyers and employers’ lawyers to put right the failure of the last Conservative Government effectively to implement any European legislation relating to employment rights in the workplace. The hon. Member for Preseli Pembrokeshire (Mr. Crabb) is probably too young to remember the witch hunts of the 1970s and ’80s against trade unionists sacked by their employers simply for joining a trade union. It was this Government in 1999 who put an end to that type of witch hunt, so protecting people’s right to join a union and to encourage others to join it.
I speak from a non-legal standpoint, but I am not putting across an anti-lawyer argument, as over the years in my time as a trade unionist, many lawyers helped me with advice and support. Indeed, Lord Wedderburn is a hero of mine. He has spent his life not only looking at the law in intellectual terms, but trying to implement it in a practical, common-sense way.
There is no such thing as a perfect piece of legislation. We have to ensure that once enacted, it achieves the objectives in a way that maximises support for it within the community and wider society. In my view, we are righting a wrong against ASLEF and others. No one has so far congratulated ASLEF and other trade unions up and down this country on spending a lifetime opposing fascism, especially when it infiltrates their organisations. We should congratulate ASLEF on sticking to its guns and winning an important legal point.
The point that ASLEF won was not to do with its rule book per se. Instead, it related to a piece of legislation introduced by the Conservatives in 1992 which was a breach of article 11 of the European convention on human rights. A Conservative Government implemented bad legislation. On behalf of the European Court of Human Rights, we are attempting to implement a new piece of legislation to get rid of what happened in 1992 which was so damaging to ASLEF and others.
No doubt if we pass the Bill, all unions should, as a matter of course, look at the rule book to ensure that it is compatible with changes set out in clause 19 so that they can use it effectively now and in the future to protect themselves, their members and workers in the workplace against fascist activity by individuals or collective groups of individuals, whether they are in the BNP or other organisations.
I think that the hon. Gentleman is about my age. He should have realised what was happening in the 1950s. There were witch hunts against communists, but not by trade unions or trade unionists; they were carried out by right-wing politicians here and in America, and of course blacklists were introduced by Conservative employers which lasted all the way through to 1999. This Government got rid of blacklists as well. There is a history of people being blacklisted and blackballed, but not for their political views, in the way that we are talking about the BNP and fascists, but because of their capacity and willingness to represent working-class people in the workplace against employers who did them down. If the hon. Gentleman wants to talk history, he should get it straight.
The issue is simple. Does the proposal accepted in the Lords achieve the objectives? First, does it achieve the aims set out by the Court in ASLEF v. UK? Secondly, in achieving that objective, does it give trade unions the opportunity in a practical way to take account of changing circumstances in the future, both in terms of fascist organisations and individuals in the way in which they organise and operate, or attempt to do so, in the wider community and workplace? If Lord Wedderburn says to me that that is exactly what the proposal does, with the appropriate safeguards, then I will back him on any occasion. If Bill Morris, a colleague of mine, says from his perspective as a former general secretary of a union that has a history of shop stewards being blacklisted and undermined in the workplace, that the proposal is the most effective way forward and achieves the objectives set out when ASLEF appealed in the court, we should accept it as a victory.
I know of no piece of legislation passed in this place on employment rights or the protection of trade unions that will not come under scrutiny or challenge. The reality is that the Bill will be challenged, as the National Minimum Wage Act 1998 was challenged. We thought that the Act protected pupil barristers, but barristers went to the High Court and had the legislation overturned. We thought that that decision was wrong, and we came back to the House and amended the Act to protect workers from being undermined.
When lawyers disagree with each other, it is no reason for us to lose our nerve and not do the right thing by ASLEF and other trade unions. The Bill overwhelmingly does the right thing. We need to do what it sets out, not just because the Court told us to do so, but because ASLEF was right in the first instance in protecting itself and its members from fascist organisations and fascist individuals.
I shall support clause 19. Let us get on with the task that ASLEF set us all so many years ago. Let us organise a victory against fascism and racism in the workplace, and encourage people to join unions. Clause 19 will enable many people out there who are not union members to take comfort in the knowledge that they can join a union without being victims of abuse from fellow members who are racists.
One cannot but admire the speech that we have just heard. I agree with everything that was said by the right hon. Member for Makerfield (Mr. McCartney), and I thank the Government for making this concession after hearing what was said in the House of Lords. They have a big majority in this place and they could have stuck to their guns, in which case we would probably have had ping-pong. It should be noted that they recognised the existence of an alternative way that is clearly better than their original proposal.
I want to make two points. The first concerns the Court judgment. It should be borne in mind that the Court held that the relevant provision in United Kingdom law which prohibited a trade union from expelling a member for membership of a political party failed to strike the right balance between the right of the union to freedom of association and the right of the individual to freedom of association.
We have to recognise that human rights must sometimes be accorded to people with whom we find it difficult to sympathise. That is the measure of human rights. It is very easy to grant human rights and civil liberties to people with whom we agree all the time, and whom we find pleasant and amenable. It is much harder to stretch the definition, and the test of whether we have the right human rights culture is whether we extend it—when it is reasonable to do so—to people with whom we encounter difficulties.
As is made clear in a report from the Joint Committee on Human Rights, the judgment stated:
“The UK had gone too far in its protection of the… member against measures taken against him by his union, at the expense of the right”
of members to choose. We noted:
“The ASLEF judgment unequivocally recognises that trade unions enjoy, under Article 11 ECHR, a right to freedom of association which includes the prima facie freedom to set up their own rules concerning conditions of membership. The judgment, however”—
this is why I oppose the new clause tabled by the hon. Member for Manchester, Central (Tony Lloyd)—
“is equally clear that this right of trade union autonomy is not unlimited: the Court clearly envisages a positive obligation on the State under Article 11 ECHR to protect the freedom of association of the individual against abuse of a dominant position by trade unions.”
In our recommendation, we argued that safeguards were needed in addition to those in the original Bill
“to strike a ‘fair balance’ between, on the one hand, the Article 11 right of a trade union to control its membership and, on the other, the Article 11 rights of the individual, including the right not to be excluded or expelled from a union arbitrarily or in circumstances that would result in exceptional hardship.”
Those words are taken from the judgment.
The hon. Gentleman has just explained, in terms as clear and concise as any I have heard, that no union—or, indeed, any organisation, but no union in this instance—should be allowed arbitrarily to dismiss, expel or exclude any person who wishes to join that organisation or remain a member of it. However, that is not what this provision is about. It is about circumstances in which a union has clear rules, objectives and aims encapsulated in a rule book, agreed by its members, to the effect that no individual who holds views contrary to those rules, aims and objectives should be allowed to join, or that any such individual should be excluded when the union discovers that that is the case. In this instance, we are citing fascism.
I apologise, Madam Deputy Speaker.
The hon. Gentleman is right, but there need to be additional safeguards beyond those that he has identified. I think that clause 19 captures them pragmatically, and in the best way possible.
I am concerned about the position of the Conservatives. Either they accept the ECHR judgment or they do not. The hon. Member for Preseli Pembrokeshire (Mr. Crabb) praised the judgment but then attacked what it led to, which is where we are now.