Standing Committee E
Thursday 18 March 1999
[Mrs. Gwyneth Dunwoody in the Chair]
2.30 pm
The Chairman: Before we begin, I draw the attention of the Committee to a misprint on the amendment paper. Amendment No. 259 relates to line 38 on page 46 and not, as is printed, to line 17. That means that amendment No. 259 should be marshalled after amendment No. 258; that is not surprising, even in the House of Commons. However, the mistake does not affect the Chairman's provisional selection and grouping list, as amendment No. 259 is in any case the next lead amendment selected after amendment No. 255. I hope that all hon. Members are paying attention, because I intend to ask questions.
Clause 2 ordered to stand part of the Bill.
Schedule 2
Union Membership: Detriment
Mr. Tim Boswell (Daventry): I beg to move amendment No. 255, in page 46, line 14, after second "any" insert "wilful and".
The Chairman: With this it will be convenient to take the following amendments: No. 256, in page 46, line 14, after second "act", insert "by way of discrimination".
No. 257, in page 46, line 17, at end insert "wilful and".
No. 258, in page 46, line 20, after "individual", add "by way of discrimination."
Mr. Boswell: Thank you, Mrs Dunwoody, for clarifying that point on the later amendment. I chose not to speak on clause 2 because the Government have translated the meat of their proposals into schedules, as has been their wont lately.
Schedule 2 is somewhat more manageable than most of the schedules that we have been dealing with. When I first read it, I wondered whether I might have been short changed and whether another 11 pages were to come. However, we will not speculate further on that.
Conservative members have no difficulty in principle in accepting either the clause--which they did not seek to oppose--or the intention of the schedule. As the explanatory notes helpfully remind those of us who may not always have the information at the front of our mind, the measures related to the cases of Associated Newspapers v. Wilson and Associated British Ports v. Palmer, in which judges applied--as they are entitled to do--a literal interpretation of the Trade Union and Labour Relations (Consolidation) Act 1992.
The cases were about whether actions were positive actions, but did not deal with failures to act, which are addressed under the schedule. I have no particular problem with that, but I tabled the amendments to probe a number of details.
As I have said to the Committee in a slightly different context, an act is a fact, but a failure to act is something of a speculation. A court must decide whether somebody has failed to act, and it is right that it should examine all the circumstances. However, it is a little easier for us to get hold of a positive act than to identify a negative act or a failure to act.
We tabled amendments Nos. 255 to 258 to find out two things. Amendment No. 255 would insert the word "wilful". I am by no means sure that that is the right adjective to use. Again in a different context, I have regularly said that the Government are rather fond of adjectives--rather fonder than they are of nouns. The amendment is an attempt to import a test of whether someone has wilful determination to be unfair to the trade unionist or person who has allegedly suffered detriment.
The Bill simply refers to a deliberate act, but that does not necessarily imply that the act was taken in that context.
That is what I am feeling after; the amendment is probing. I would like the Minister either to reassure me on it or to explain why his wording is more viable for what I think is a common intention.
The second point--which relates to amendment No. 256 and, as I will explain, to amendment No. 258--is that we should insert the words "by way of discrimination". That is another way of saying that the failure to act should be viewed in the context of deliberately trying to discriminate against the union member in particular.
As I have said, we are happy with the principle it is enshrined in the Conservative Government's consolidation legislation--that there should be no picking on union members. We are not discussing that issue. Employers may deliberately do things--or, in certain cases, deliberately fail to do things--that they judge to be perfectly reasonable parts of business practice.
A failure to act--the concept that schedule 2 imports--is a rather more slippery notion than a positive act that has taken place. By tabling the amendments, I am inviting the Minister to consider whether it would be sensible to include in the Bill a test of a wilful attempt to be unfair to the employee or union member. The amendment is probing; the debate is simply to find out whether our wording is more appropriate than the Government's.
The Minister for Small Firms, Trade and Industry (Mr. Michael Wills):
In responding to what I accept are probing amendments, I will take amendment No. 255 and the consequential amendment No. 257 together, before responding to amendments Nos. 256 and 258.
The Government believe that the new wording that schedule 2 will insert into section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 gives individuals the right not to be subjected to any detriment by an act or any deliberate failure to act on the part of the employer, whose purpose was one prohibited by that section. That is clear and unambiguous.
I understand how the hon. Member for Daventry (Mr. Boswell) might think that an employer could commit a deliberate act that was not intentional or wilful. If one examines the dictionary definitions of those words, however, one will see that the problem largely goes away. The dictionary defines "wilful" as "intentional". The same dictionary defines "deliberate" as "carefully thought out in advance" or "to consider deeply".
There is an element of semantics here. The amendments would drag employment tribunals into semantic discussions about the relative meanings of the words "wilful" and "deliberate". The Government believe that--for the purposes of the legislation--,'deliberate" is a perfectly good word for signifying intent. That is the key test. It covers both conscious and unconscious failures to act. I think that that addresses the concerns of the hon. Member for Daventry.
Mr. Boswell: I think that the Minister realises that we are probing to get the wording right. He will know that he is operating under the shadow of Pepper v. Hart. He has just said that a deliberate act implies intention. Unfortunately, he qualified that by saying "for these purposes".
Our concern--I would like the Minister to consider it and, if necessary, to take it away--is about the maintaining of the word "deliberate". An employer could be taking, or failing to take, an act for what seems to him a good reason. That act, or failure to act, could then be interpreted as discriminatory for the purposes with which the Minister is concerned. We are anxious to differentiate actions that are nasty and unfair from those that are taken for another reason and have nothing to do with an attempt to pick on individuals.
Mr. Wills: Of course, I appreciate that. Our view remains that the addition of words to qualify meaning would, in fact, add doubt to the meaning rather than amplify it. The amendments would narrow the definition of the word "omission" by adding a further criterion. That would be unnecessary. The existing wording is perfectly clear.
I shall speak to amendments Nos. 256 and 258 together. They are paving amendments, the purpose of which is to give employers a get-out. Under the amendments, the right would apply only when a deliberate failure to act, that a worker had been subjected to as an individual, was by way of discrimination. Whether a deliberate act taken by an employer had a discriminatory effect is for an employment tribunal to decide. The wording in the amendment is unnecessary and would serve only to complicate matters. The clause deals adequately with the issue. I hope that the hon. Gentleman will withdraw the amendment.
Mr. Boswell: I have listened to the Minister's argument and, with my fingers crossed--as I fear his fingers may be--I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Mr. Boswell: I beg to move amendment No. 259, in page 46, line 17, at end insert
"or if that is unclear, to the date on which the discrimination becomes apparent.".
For those who are not paying attention to the Chair earlier, the amendment relates to new subsection (2)(b) under paragraph 3 (4) of the schedule. If anything, I am making an even smaller point than the one I raised a moment ago, in respect of a provision that we are not substantially contending. It refers to mental states and, commendably, the Government want to be as clear as possible and have imposed several tests under the clause. We must remember that we are discussing an act, but a peculiar kind of act--it is a failure to act, an act that did not take place.
The test under new subsection (2)(a) under paragraph 3(4) of the schedule covers circumstances
"where an act extends over a period, the reference to the date of the act is a reference to the last day of that period",
which is probably acceptable. However, it raises the question of acts that took place, were intermitted and restarted.
The amendment refers to new subsection (2)(b) in paragraph 3(4) of the schedule which states
"a failure to act shall be treated as done when it was decided on."
The problem with determining when a failure to act was decided on is that the only people one can ask are the employers in question, and I doubt whether they would have written themselves a minute saying, "I have now decided to fail to act in this matter as a matter of discrimination against an individual on whom I have a downer."
| 
