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Lord McCarthy: My Lords, one sympathises with a great deal of what has been said in support of the amendment, but it does not really fit in with what I know of the fundamental objections of the Plymouth Brethren. Those objections are to external associations. For example, although they do not believe in joining trade unions and would not join trade unions, they do not say that they will dismiss anyone who they find is a member of a trade union. That would be regarded as outside their purview. If one of their employees came up and reasonably requested to be accompanied at a hearing by another employee who is already in their employ, I cannot see why their fundamental objection of being yoked with unbelievers would apply with regard to this part of the clause. The only part of the clause to which they might object is where a trade union official came in from outside and provided that representation. But I believe that they would find no difficulty in applying nine-tenths of Clause 10. I cannot remember--I am sure that the noble Baroness is right--exactly what was said in Committee by the Minister. However, we are not talking about trade unions but about workers who reasonably request to be accompanied at the hearing.

If the noble Baroness's amendment were passed, a person could exempt himself on religious grounds or on grounds of conscience from the effect of Clause 10. An individual worker could reasonably request to be accompanied by a fellow worker and could be told by an employer, "I have a conscientious objection". I do not think that that is right.

Lord Simon of Highbury: My Lords, the two noble Baronesses on the Opposition Benches have made it clear that this is a case which raises the issue of conflict of interest due to religious beliefs. They have both cited the group of the Brethren. I make it clear that I do not comment in any way on anyone's right to be a Brother. I very much endorse the positive remarks made.

However, I wish to talk about the principle. That may not arise solely for the Brothers. There may be other cases where we have to address this principle. The aim of the amendments is to exempt the Brethren from a legal obligation to give their workers the right to be accompanied--the right that we are discussing at great length in Clauses 10 to 14 of the Bill.

The noble Baroness, Lady Young, mentioned--perhaps she will correct me if I am wrong--that 2,000 people employed by the Brethren are not members of the Brethren. If that is the case we are concerned with their status. It may be a minority of the employees whom the Brethren employ but they may wish to join trade unions and call on the unions to assist them if they find themselves in dispute with their employer. The Brethren do not recognise that right.

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The amendments raise the difficult issue of whether workers' rights under law should be curtailed because of their employers' religious beliefs. The Government totally respect people's religious freedoms. But they also respect the right to freedom of association, as my noble friend Lord McCarthy made clear, and the right to form and join trade unions. I am sure that the noble Baroness is aware--I believe that it was mentioned in her argument--that both religious and trade union freedoms are enshrined in the European Convention on Human Rights. In tabling the amendments, I am sure that the noble Baroness is thinking of Article 9 of that convention which provides the right to freedom of thought, conscience and religion.

That article provides the right. It also says that freedom to manifest one's religion or beliefs may be subject to,


    "such limitations as are prescribed by law and are necessary in a democratic society ... for the protection of the rights and freedoms of others". Article 11 provides that,


    "Everyone has ... the right to form and to join trade unions for the protection of his interests". The Government's view on the issue has already been stated, as the noble Baroness recorded correctly, in another place and was debated in depth. It remains that, although the Article 11 right is subject to a similar qualification about the protection of the rights and freedoms of others, the reality is that the right of individuals, most of whom have no choice but to be employees, to join trade unions would take precedence over the religious freedom of employers who are free to choose whether to employ others and how to arrange their affairs.

The Government are therefore satisfied that the Bill is in conformity with the European Convention for the Protection of Human Rights and Fundamental Freedoms. The Government do not agree that workers should be deprived of their statutory rights to be accompanied at grievance and disciplinary hearings because of the religious beliefs of their employers. Moreover, there must be a danger, however small, that that can be used as a loophole, although I do not want to make that a major argument. We are arguing the point of principle in the human rights convention.

With all respect to the Brethren, we do not accept the amendments. I note that in the 1990 legislation when the right to employment as a member of a trade union was put to both Houses and the Brethren applied for exemption, the previous government did not offer them exemption under that legislation. Purely on the ground of consistency, I hope that the arguments of principle and practice will be accepted. I ask the noble Baroness to withdraw the amendment.

Baroness Young: My Lords, I find that a disappointing reply. The Minister has explained the arguments put forward in another place more sympathetically and more clearly than was done in another place. He is saying that the rights of the trade unionists must override the rights of religious freedom.

Lord Simon of Highbury: My Lords, my statement was that the rights of the individual to make a choice

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about association with a union override the rights of an employer to hold a religious belief and determine individual rights of others in employment.

Baroness Young: My Lords, I accept entirely that that is what the Minister said. It is a debatable point on two rights: which one is superior to the other. The fact that it was raised in earlier legislation may or may not be right. I am not one who has always felt that everything the Conservative government did was right. Unlike some people, I think for myself on a number of occasions. It is a serious point about human rights. It is not a matter to laugh about. People who hold these beliefs are entitled to them; and in this Bill and in the 1990 legislation they are being discriminated against. In effect, that is what is being said.

I am glad that the Minister did not suggest that this issue is a major loophole. I do not think that that is true. My noble friend Lady Miller explained clearly the restrictive lives that these people lead. The idea that many people will lead similar lives and want to find a way through the law is most unlikely. I am glad that that argument has been dropped.

It is a sad day when the Government cannot accept the amendment. That we have reached this stage says something sad about society. I shall withdraw the amendment, but I shall consider carefully whether I shall return with some newly drafted amendment at Third Reading. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Simon of Highbury moved Amendment No. 114:


Page 5, line 20, leave out ("an official of a trade union") and insert ("employed by a trade union of which he is an official")

The noble Lord said: My Lords, in moving the amendment, I speak also to Amendments Nos. 115 and 117. All these amendments serve to clarify important terms used in Clauses 10 to 14. Amendments Nos. 114 and 115 deal with the accompanying companion, while Amendment No. 117 deals with the hearing. I shall speak to them together.

Amendments Nos. 114 and 115 concern the list of persons who may be an accompanying person. Noble Lords will be aware that this subject has been much discussed in another place and, more recently, during consideration by this House of Clauses 10 to 13 at the second day in Committee.

I recall that the debate centred on an amendment tabled by the noble Baroness, Lady Miller. It sought to minimise the scope for people who were not fellow workers to act as an accompanying person. The Government do not believe that the right should be confined to fellow workers only. This would cast the right too narrowly and it would exclude some of the most appropriate and effective individuals--experienced trade unionists--from performing a standard function of a trade union.

I think noble Lords from all sides of the House would not disagree with me on that point. Indeed, during the debate on 16th June, the noble Lords, Lord Gladwin of Clee and Lord Tebbit, both made helpful remarks about

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the wealth of expertise and experience that full-time and lay officials can bring to bear during grievance and disciplinary proceedings. However, the Government are mindful of the concerns of those who believe that allowing unqualified or inexperienced outsiders to participate in internal procedures might be unhelpful or even disruptive.

As a consequence, we have revisited the list of people who may be an accompanying person with a view to ensuring that only those who are suitably qualified for the task will be entitled to act as the accompanying person. We consider that the right for a fellow worker to act as a companion should remain as it is. Of course, in many cases the fellow worker will also be the local union representative. Fellow workers are qualified to perform this function on the basis of their intimate knowledge of the employer and local employment practices.

Our concern in these amendments is with the outsiders who can attend hearings. To that end, the first of these amendments has the effect of stating that officials who are employees of a union are suitable outsiders who can act as an accompanying person. This category includes the majority of full-time union officials. These people are extremely experienced in a variety of representative roles, and there can be no question about their competence to act as an accompanying person.

The second amendment, Amendment No. 115, limits the lay officials--that is, officials not employed by the union--who may act as an accompanying person. It does this by placing a qualifying condition on lay officials that they may act as an accompanying person only if certified in writing by their union as competent to carry out the accompanying function. As I have said, this does not affect the right of a worker to have a fellow worker who is a lay official as his companion because that is allowed under subsection (2)(c). Fellow workers are a separate category of persons who may be companions.

The amendment should provide an important measure of quality assurance to both employers and workers, shielding both parties from the incompetent or inexperienced. Workers and employers can of course jointly agree to the involvement of an outside lay official who does not possess the necessary certification. However, they are not required to do so. I should add that it is not the Government's intention to place a burden on trade unions by insisting that their lay officials undertake any formal accreditation by a third party. That would be expensive and bureaucratic. A trade union will simply need to certify in writing that its officials who are to perform this kind of work are competent so to do.

It is up to the unions to decide how they operate this accreditation process. Unions have a strong interest in ensuring that they field suitable lay representatives: otherwise, full-time officials might have to be called in to sort out difficult or botched cases. Unions stand to lose members and the confidence of employers if their service is seen to be second rate. Most trade unions already provide training for their lay representatives,

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often via the educational services of the TUC. I would imagine that unions will not consider issuing a certificate to new lay officials at least until they have completed a basic shop steward's course or have been in post for a certain length of time. For the purposes of clarity, the Advisory, Conciliation and Arbitration Service code on the new right could well include guidance to unions on this issue. The ACAS council membership comprises some eminent trade unionists and it is well placed to advise on the matter.

These are sensible amendments that will benefit all parties to grievance and disciplinary hearings. Individuals will have the assurance that their accompanying companion is competent and employers can rest assured that their procedures will not be thwarted by inexperience or incompetence.

I turn now to Amendment No. 117. During our debates on the right to be accompanied in grievance and disciplinary hearings, we have had discussions about the definition of a hearing to which this right should apply. I am thinking in particular of observations made by my noble friend Lord Monkswell at Second Reading and of the debate on Amendment No. 266 tabled by the noble Lords, Lord Meston and Lord Razzall, during the second day of Committee on 16th June.

Noble Lords will recall that the Government rejected that amendment on the grounds that it was too widely drawn and would cast doubt on the provisions of Clauses 10 to 14. The Government have reflected on these questions and we have looked particularly at Clause 13 to see whether the definition of a hearing to which the right should apply can be improved.

It is the Government's clear intention that the right should apply where a disciplinary or grievance hearing addresses a serious issue. However, as currently drafted, subsection (4) implies that hearings about serious issues could take place at which the right would not apply because the hearings do not form part of any pre-existing procedure. If allowed to stand, the present wording might enable employers to argue that they did not operate a procedure, even though they held hearings to deal with serious grievance and disciplinary matters. It might complicate matters for workers, who would be required to demonstrate that, de facto, a procedure existed through custom and practice. It might also present problems for tribunals in deciding whether a procedure in fact exists. This issue would be particularly difficult to decide when the employer had never, or seldom, held hearings in the past. We believe that this weakness in the Bill should be addressed. This amendment contains an improved form of words that makes it clear that the right to be accompanied applies to all hearings where serious issues are at stake.

I wish to make two things clear. First, this amendment in no way affects the provision that the right applies to hearings about serious disciplinary and grievance matters only. It certainly does: we are not providing a loophole through which minor or trivial issues can slip into the right. Secondly, it remains the case that the Bill does not require employers to establish disciplinary procedures where they do not have them; nor are they required to hold a hearing where a procedure exists. Of course, as I have made clear in earlier debates on this subject, a failure by

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an employer to deal with a grievance or a disciplinary issue in an appropriate procedural manner can count against him or her should tribunal proceedings ever result.

Noble Lords will be aware that the Government are aiming to encourage employers to establish procedures as a matter of good employment practice. This message will be underlined in the new code of practice setting out in more detail how the right to be accompanied will apply in practice and taking account of my argument to the House. I am pleased to inform noble Lords that ACAS has agreed to draw up the code. In so doing, it will, in effect, be revising and extending the existing code. ACAS has an excellent reputation for providing sound advice and practical guidance on industrial relations, and I am sure that noble Lords will join me in welcoming that news.

The amendments will ensure that, whenever an employer holds a hearing about a serious matter, the right to be accompanied--and accompanied appropriately--will apply. In so doing, it will make clear the obligations and entitlements of both employers and workers and it will remove uncertainty as to the law's intended effect. I beg to move.


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