Employment Rights Bill

Debate between Baroness Cash and Lord Hendy

Report stage
Wednesday 23rd July 2025 Lords Chamber

[Lord Hendy (Lab)]

Yes, not again—we rehearsed that in Committee. However, those cases do not support the proposition that the noble Baroness advanced. The case of Young, James and Webster v the United Kingdom concerned three railway workers, who were compelled to join a trade union against their wishes—a closed shop—and the European Court of Human Rights held that they should not be compelled to do so at the risk of losing their jobs. It had nothing to do with making political payments or being associated with a political party.

[Baroness Cash (Con)]

The noble Lord is right that that is what the case was about. However, one of the factors in the judgment was the absence of a refund mechanism. I recall a rather fun debate between the noble Lord and me in Committee, which I hope we will not exhaust everyone by repeating today; however, it is really important that this is clarified. Article 11 will be engaged if the measure in the Bill is done; it is regressive and wrong in law and it will be subject to legal challenge. The European court found that it engages Article 11 where there is no refund mechanism. If the Labour Party or a political fund retains the subscription for even one second, it will have engaged unlawfully with Article 11.

[Lord Hendy (Lab)]

My Lords, the difference is that, if you are a member of a trade union, you can leave the trade union. There is no compulsion to remain a member of a trade union. If you do not like paying the political—

[Baroness Cash (Con)]

My Lords—

[Lord Hendy (Lab)]

Can I finish the sentence?

[Baroness Cash (Con)]

My Lords, I will intervene once more and then that will be it, because I do not want us to repeat the ping-pong we had between us in Committee—I am sure that we can take it outside, as they say. It is of course completely normal for noble Lords in this House to disagree at times.

I want to clarify that I am not saying that this compels someone to remain a member of a union—that is not what is happening here. The way that the Bill is drafted allows the payment to be taken by the union and provides for no refund mechanism. There is a minimum period of one month before the notification of the opt-out is received, and then a permissible further cycle of salary is allowed before the subscription is stopped. There is no mechanism for a refund. So, in any opt-out, the union keeps some of that person’s money —that is what is unlawful.

[Lord Hendy (Lab)]

I will try to finish the point in just a couple of sentences. The point is that somebody who does not like paying the political subscription can simply leave the union. If they object to it, that is what they can do. That freedom is protected by Article 11 of the European convention and is ratified in a whole number of cases. I will not develop the argument further. I would love to take it outside with the noble Baroness. We can have a drink and go into all the cases.

I just wanted to make one further point. The suggestion was made by the noble Lord, Lord Balfe, that perhaps trade unions should be barred from making political payments at all. It is an interesting argument, which nobody else has advanced. It reminds me of the point my noble friend Lord Barber made about the fact that the requirement to have a political fund, introduced in 1909, is imposed on no other organisation in this country. Companies do not have to have separate political funds, ballot their members or shareholders or answer to anybody in making a political donation. It is only trade unions that are required to hold political funds with all the paraphernalia of opting in or opting out. I am not going into that argument.

I was contemplating—I never did it, but perhaps I should have done—moving an amendment that trade unions should be relieved of having political funds at all. It was a requirement which answered the Law Lords’ decision in Osborne vs the Amalgamated Society of Railway Servants in 1909, eight years after the foundation of the Labour Party, to bar trade unions from funding the political party that they had just launched. If we got rid of trade union political funds, we would not be having this argument at all.

Employment Rights Bill

Debate between Baroness Cash and Lord Hendy

Committee stage
Tuesday 10th June 2025 Lords Chamber

[Baroness Cash (Con)]

I am very grateful to the noble Lord for that assistance. I therefore look forward to the amendment put forward by the Government to exempt those 13, given the law that I am explaining and the attack on the freedom of association that should be maintained in this country.

[Lord Hendy (Lab)]

Will the noble Baroness permit me to intervene? She spoke about Article 11 of the European Convention and freedom of association, and the right to join a trade union and be a member for the protection of one’s interests. This is spelled out in Article 11.1. She mentioned the case of Young, James and Webster v the United Kingdom, which established that there is a negative right not to become a member of a trade union, as well as a positive right to become a member. However, the European Court of Human Rights has never held in any case that a member of an organisation, a political party or a trade union can opt out of a particular payment that that organisation is making.

[Baroness Cash (Con)]

I am grateful to the noble Lord for his intervention, but he is wrong. The European Court has ruled that it is not possible. Article 11 does not permit compelling any citizen of this country, or any member of a trade union, to make a payment by political association. That is simply not correct.

[Lord Hendy (Lab)]

Let me put it more respectfully: I disagree. That is not what the jurisprudence of the European Court of Human Rights on Article 11 demonstrates. There is no right, if you are a member of the Royal Society for the Protection of Birds, to opt out of any contribution or expenditure it makes on any particular objective. There is no such right established under Article 11. You can opt out of being a member of the organisation, but you cannot opt out of what it has decided to spend its money on. All you can do is exercise your rights under its constitution to object or decide it should be spent on something else.

[Baroness Cash (Con)]

The noble Lord is, very respectfully, making interventions which do not follow the law. I will quote a couple of other cases because that may assist the debate: Sigurdsson v Iceland, and Sorensen and Rasmussen v Denmark. The noble Lord can join the Royal Society for the Protection of Birds, and whether or not he opts out is not a matter for this debate. We are talking about the freedom to join a trade union, and the asking of those who have signed up to be a member of a trade union to contribute to campaigning funds—political funds. It is that political association—the taking of funding for that political association—which infringes the Article 11 right.

[Lord Hendy (Lab)]

Forgive me, but those two cases do not demonstrate that. I am familiar with this jurisprudence; I suggest that the noble Baroness read the cases again.

[Baroness Cash (Con)]

I understand that in this House people sometimes disagree, and perhaps, respectfully, that is happening here. I can give way as many times as the noble Lord likes, but it is plain from the case law and the jurisprudence, and from how Article 11 is taught at law school, where I have taught it as a guest, that this is how freedom of association applies.

After an opt-out has been introduced, there is no refund mechanism available to cover the period during which the funds will be taken by 13 of the trade unions and passed to the Labour Party. At least we are now agreed that 13 of the unions will be giving the funds to the Labour Party. In those circumstances, we are compelling people to support it. It is because the Human Rights Act and the European Court jurisprudence intervened—that was part of the conversations when the opt-in was considered. Looking at the contributions, financial or otherwise, made during that period, I am very grateful to the noble Lord, Lord Prentis, for drawing our attention to the decrease in political funding that has ensued because of the change. We know that that is why this change back needs to be made, but that does not make it right.