Employment Bill (Hansard, 8 February 1988)

§ Mr. Nicholls
I beg to move amendment No. 3, in page 4, line 45, leave out 'any of.

§ Madam Deputy Speaker (Miss Betty Boothroyd)
With this we may discuss Government amendments Nos. 4 to 6 and 21.

§ Mr. Nicholls
The amendments address two concerns raised by the Opposition in Committee. First, they ensure that disciplining, in the context of maintaining professional standards, will not be unjustified and, secondly, they remove potential from disciplining in respect of assertions made in bad faith. I hope that they will be welcomed by the House.

§ Mr. Strang
I shall not detain the Committee, but it would be helpful if the Minister could clarify amendments Nos. 5 and 6. I understand that they are intended as concessions to points raised by Opposition Members in Committee.
The purpose of amendment No. 5 appears to be that, where an individual member is disciplined for an action independent of a dispute—in other words, an action for which he would be disciplined even if there were no dispute—that would not be covered by clause 3. For example, in Committee we discussed the possibility of a trade union disciplining an individual member who took action contrary to health and safety considerations. Another example related to whether the clause would prevent the Royal College of Nursing from disciplining a member who took action incompatible with its code of practice.
Amendment No. 6 goes some way towards meeting the Government's undertaking on what the Opposition called the libel charter — where an individual member could libel an official, but it would not be possible for the trade union to discipline him. However, it does not go far enough. Someone may make a libellous statement, which, indeed, is determined by a court to be libellous, but it will not necessarily be covered by amendment No. 6, which states that for a statement to be excluded from the requirements of clause 3 an individual must have acted either in the belief that it was false or otherwise in bad faith". If the matter ever got to court and the person were disciplined, the trade union would have to show that the member made the statement in the belief that it was false or had otherwise acted in bad faith. That is difficult to prove.
If my understanding of the clause is correct, the Minister will probably find that the amendment is discussed again in another place. It is not a satisfactory way of meeting the Government's undertaking in Committee.

§ Mr. Nicholls
The hon. Gentleman asked me to compare amendments Nos. 5 and 6. I shall compare amendments Nos. 3 and 5 on the one hand and amendment No. 4 on the other hand. Amendment No. 4 would only have protected disciplining to maintain professional standards outside a strike context. One could have put an argument for doing that. The hon. Gentleman quite properly said that that would have gone far enough.
The conjunction of amendments Nos. 3, 4 and 5 together is such that, if it is a matter of maintaining 122 professional standards, disciplining can take place. The hon. Gentleman is entirely right to refer to the Committee debate. If what a union does is incidental to a strike or industrial action—if it is almost coincidental to it —and if it could show that it would have disciplined for that sort of matter anyway, it will be able to do so.
The example that we discussed in Committee was helpful. We discussed what would happen in a nursing home if nurses acted in an unprofessional manner by over-administering sedation. Obviously, in such a situation, a union will be able to show quite straightforwardly that it will always discipline for that matter, and that therefore, to that extent, it is almost coincidental to a strike. In such a situation, the clause will be everything that the hon. Gentleman would hope that it might be.
Amendment No. 6 addresses a specific concern. The hon. Gentleman will have opened his remarks on the basis that he thoroughly dislikes the whole clause and the Bill. The point that concerned him and other Opposition Members was that it will become a libellers' charter and that people could say anything that they want in the most bad faith and in the most malicious way. We believe that, as drafted, amendment No. 6 takes account of that.
When I was considering the amendment, the only thing that I could find about it which I suspect will not be entirely to the hon. Gentleman's liking was simply that it would be the case that, if an allegation were made in bad faith but was nevertheless true, that situation also would lie outside it. That is almost an exercise in logic. The hon. Gentleman would scratch his chin at it, but he would agree that it, at the end of the day, the assertion turned out to be true, even if it were made in bad faith, it would have to be exempt.
Subject to that rather narrow point, we certainly believe that it would answer everything that the Opposition want. I take the hon. Gentleman's point. If he is not entirely satisfied with it, I imagine that it will be discussed again in another place. I hope that, on reflection, the hon. Gentleman will feel that, if not exactly what he wants, it is pretty close to it.