HL Deb 14 July 2003 vol 651 cc167-210GC

(Third Day)

Monday, 14th July 2003.

The Committee met at half past three of the clock.

[The Deputy Chairman of Committees (Lord Lyell) in the Chair.]

The Deputy Chairman of Committees (Lord Lyell):

The usual rules of Grand Committee apply. I must just remind the Committee that, if there is a Division in the Chamber while we are sitting, we shall adjourn, as soon as the Division bells have rung, for 10 minutes. Then we shall resume.

Clause 2 [Supplemental provisions]:

Lord Wedderburn of Charlton

moved Amendment No. 34: Page 2, line 28, at end insert—

  1. "(1A) An act shall not constitute an unlawful act or unlawful means for the purposes of the law of tort by reason only that it is—
    1. (a) a breach or contravention of or non-compliance with this Act or an order made under this Act, or
    2. (b) an inducement or incitement of or agreement to commit such breach or non-compliance.
  2. (1B) In subsection (1A) "act" includes deliberate omission."

The noble Lord said: In moving Amendment No. 34, I shall speak also to Amendments Nos. 35 and 41.

It may help if, in moving the amendment, I say things that are relevant to the amendments that follow. Many of them are an attempt, as this is, to cure the silence of the Bill about what happens if and when fire brigade members or a fire authority do or induce something that offends either a direction under Clause 1(1)(b) or fail to abide by or refuse to accept an order concerning conditions of employment under Clause 1(1)(a).

The difficulty with that is that it involves the problem of civil wrongs, usually referred to today as economic torts. They sound technical, but they are not. They do, however, require some explanation. In the past 40 or 50 years, there has grown up a clearer liability for what is usually referred to as deliberate damage done by unlawful means, for which an injunction or, ultimately, damages might be obtained on proof—in the case of an injunction—of anarguable case. It happens often in injunctions obtained or claimed against those who have threatened or taken strike action.

Parliament has referred to the issue many times in the past few years. 1 remember, though, that the last time on which it was fully debated was 12th June, 1980. It was debated for an hour or more, largely by myself and the then Lord Chancellor, Lord Hailsham of St Marylebone. We both put many authorities on the record, some of which it will be necessary to refer to again today because, as I have said in previous proceedings, I do not like making propositions that rest on principles of law without referring to their authorities. Our task, in this amendment especially, is, first, to get the Government to appreciate the problem in the Bill and, if we can, to help to remedy the uncertainties that beset the Bill in respect of what is sometimes called—jurisprudentially inaccurately, in—this country—the right to strike.

I am sorry to have to say to the Committee that, after discussion and considerable consultation, I must detain the Committee first on a relevant contextual issue, of which I have given notice. It will take a little time, but it was not my choice to put such matters into the purview of the Committee or of Hansard. That was the choice of my noble friend the Minister. In previous sittings of the Grand Committee, accusations were made about me and my noble friends that went to our integrity and our bona fides. It was not my choice to air the matters in Hansard, but they are now there and are all over the world on the Internet.

On 3rd July, in this Committee, my noble friend Lord Rooker suddenly—with some asperity and without giving the conventional notice and, as far as I know, without much inquiry or previous consultation—accused my noble friends and me of malpractice that day over the groupings of amendments. That is at col. GC 286 of Hansard. He followed that on 7th July by accusing us of improper conduct and behaviour. He said that I had been guilty of improper conduct and behaviour in respect of a member of staff, in the Chief Whip's Office … last Thursday".—[Official Report, 7/7/03; col. GC 39.]

That accusation was without foundation.

My noble friend based his angry words on a misunderstanding of the arrangements set out in the Companion with regard to groupings and, at best, a misapprehension, based on hearsay, about events at or about 12.15 p.m. on 3rd July in an office in which he was not present. He said that my noble friends and I had changed the groupings at 12.15 p.m. That was wrong. He said that, when he arrived at work, they were in one grouping, and then they were all separated. He said: So, do not start telling me about the changes in the rules of this place. I am new here. My noble friend has been here for donkey's years. If he wants to work in a situation of anarchy, that is up to him".—[Official Report, 3/7/03; col. GC 286.]

I asked the Minister to retract that and apologise, but, so far, he has not done so. I hope that he will. He also said that we had twisted his words and claimed that noises that he had heard between my noble friend and me—we were sitting down—meant that his good faith was being doubted. No mention was made of his good faith. My noble friend Lord McCarthy explained to him the principles and practices followed over two decades in the Companion, of which he seemed unaware. We had spent two weeks drafting and arranging our amendments to allow for sensible debates on difficult issues. It is not our habit to try to produce anarchy.

On the events about which the Minister suddenly launched his accusations there has been considerable correspondence. My noble friends and I had had full co-operation from that office up to 12.15 that day, as we had had for 25 years. I found that inaccurate draft groupings had been placed in the Prince's Chamber. I was entitled to ask that they be removed because I had not agreed to them. They were not. My request was refused, and I was annoyed that that was denied me, which was wrong.

I have already written to the member of staff involved to say that I regret my annoyance, that I regret any unintended affront that it was thought to convey and that I wish to put the whole matter, even though it has been put into Hansard on no direct evidence—

Lord Evans of Temple Guiting

May I intervene?

Lord Wedderburn of Charlton

I want to finish the statement. It is important to me to get it right. My noble friend will have plenty of opportunity—

Lord Evans of Temple Guiting

It is a point of order.

Lord Wedderburn of Charlton

We do not have points of order.

Lord Evans of Temple Guiting

You are making a personal statement, when you ought to be speaking to Amendment No. 34.

Lord Wedderburn of Charlton

I am speaking to Amendment No. 34, in the hope that our debates today can be improved. I also have something to say that is relevant to my noble friend Lord Evans of Temple Guiting. I have given him notice, so, perhaps he will allow me to say it.

I was not guilty of any abusive behaviour.

Lord Evans of Temple Guiting

I am sorry to interrupt. I heard you abusing a member of staff. There are five witnesses. Your behaviour was absolutely disgraceful. The irony of the situation is that we are talking about industrial relations, when you treated a member of staff of the House of Lords in a way the like of which, in 30 years as an employer, I have never seen.

Lord Wedderburn of Charlton

My noble friend was not present. I was with the member of staff in the middle office. At the choice of the Chief Whip, the matter was discussed there. I did not abuse him, but if they like to go on saying that, what I shall say in a moment will, I suggest, be relevant.

Lord McCarthy

If we go on like this, we are breaking the law. We are denigrating people. It will go into Hansard and be published. It is actionable.

Lord Wedderburn of Charlton

My noble friend would need to take further advice on that.

Lord Campbell of Alloway

Will the noble Lord please give way for one second?

Lord Wedderburn of Charlton

With pleasure.

Lord Campbell of Alloway

With respect to the noble Lord and everybody else, I beg to move.

Lord Wedderburn of Charlton

You cannot.

Lord Campbell of Alloway

I know, but I still beg to move—although we are all clobbered—so that we can move away from a personal discussion. This does not concern any of us. I do not know who is right or who is wrong or what happened. I do not care. It can be sorted out somewhere else between noble Lords. I ask the noble Lord to allow us to get on with our job.

Lord Wedderburn of Charlton

I am most appreciative of the noble Lord's comments. I agree with him. I am trying to set our discussion in a context that is different from that created by those who wish to destroy the integrity and honour of my noble friend and myself. As that was done in Hansard, I am entitled to reply in Hansard.

I come to the most astonishing fact of all. I pause only to say that the intervention of my noble friend Lord Evans of Temple Guiting is the first time that anyone has said anything like that in an extensive and detailed correspondence with those in his office, including the Chief Whip. Nobody said that he was there, and nobody has said that there were all those witnesses. If the noble Lord wants to produce them and there is some due process in this matter—instead of the launching to and fro of accusations without any inquiry—I shall be happy to deal with it and to publish entirely all the documents—to one of which, I come.

I collected up my papers after going to Hansard on the night of 7th July. I have a great number of files on the matter, as noble Lords will know. When I got home, I put them away. I looked at them the next morning, and I found in them a document that is relevant to the Committee's discussion. I am sorry to have to put it into Hansard, but I did not choose Hansard as the vehicle for the attack. If it is a vehicle for the attack, I am entitled to use it as a vehicle for the defence.

The document that I found the next morning among a jumble of papers, most of which were mine and several of which I could not understand, is dated 3rd July, 2003, the day that the trouble began. It is addressed to Matthew Evans—the noble Lord, Lord Evans of Temple Guiting—and copies were to be sent to the Chief Whip and to the noble Lord, Lord Rooker. It is headed "Fire Services Bill", and it gives the name of the sender, which I shall not read into Hansard, although it is, in fact, the member of staff who was involved in various matters that we touched upon and in which my noble friend Lord Evans of Temple Guiting intervened in a way that is not substantiated by evidence. It reads as follows: Lord Lea of Crondall will speak to his amendment 33 with amendments 10 and 12 which have been tabled by Lords McCarthy and Wedderburn. It is in order for Lord Lea to do so and he has given notice to the Minister of his intention. However, Lords McCarthy and Wedderburn may object because they de-grouped their amendments from his". It is correct that we de-grouped them. It then says: If they object on the floor you should inform the committee that Lord Lea is quite in order". My noble friend did not inform the Committee of that.

Lord Evans of Temple Guiting

I did.

3.45 p.m.

Lord Wedderburn of Charlton

My noble friend informed the Committee that he was in order to move Amendment No. 33. If he does not know the difference, he should read the Companion again. The document goes on: Background. Lord Lea tabled his amendment between Clause 1 and Clause 2 on the advice of the Public Bill Office. It was therefore given amendment number 33. However, Lords McCarthy and Wedderburn have used Lord Lea's text in the negative to put down amendment 10 which they have tabled in Clause [1]". I interpose to say that I could if the Committee wishes, explain the ignorance and absurdity of that description of our amendments on which we had worked for many weeks before we ever saw the amendments of my noble friend Lord Lea. It ends: They have subsequently put down other amendments in order to delay progress and stop 33 being reached". If anyone is telling me that there have not been a series of statements of that kind about us and that this document is proper, then I think they need to study noble Lords' procedures and normal methods of debate.

No one, no member of staff and no Member of your Lordships' House has the right to say that we table amendments to delay progress. My noble friend, who is quicker at this than I, spotted last time—the Committee will remember—that perhaps what we were really being accused of was filibustering. This has nothing to do with filibustering, except on the part of those who have not bothered to understand the amendments.

With generosity, this astounding communication from a member of staff might be attributed to inexperience or treatable misjudgment. For a Minister, who presumably relied on it since he had a copy, or other officer of the House to distribute such a document—and it is my belief that the document fell into the hands of other noble Lords—which my noble friend has suggested contains defamatory accusations and which certainly impinges on our integrity, seems to me to go much deeper in the context of our debate and to require further, fairer and proper investigation.

I hope my noble friend Lord Rooker will retract his allegations in suitable form and we can happily move on to Amendment No. 34, which I have to move. I could not move Amendment No. 34 on the basis that people sat around the Table saying that I was doing so with a lack of bona fides.

If the noble Lord does not wish to intervene, I shall move to the substance of the matter. I assure my noble friends that I have not been worn down by my much greater interest in the amendments which can make sense of the silence of this Bill. I assume that the law in our amendments has been the subject of close study and careful investigation by the Minister and his advisers. I therefore intend to outline very briefly the case. I shall do so without my notes and will return to any of the authorities if any of my propositions of law are disputed in the reply.

Strikes in this country are lawful, in so far as they are, when they can rely upon the protection of the Trade Union and Labour Relations (Consolidation) Act 1992—largely Section 219. That section and others like it protect actions taken in contemplation or furtherance of a trade dispute where they would otherwise be tortious on certain grounds. As far as our context is concerned, the relevant grounds very largely induce a breach of strikers' contract of employment. What is not protected in trade disputes and in industrial conflict is action which induces a breach of or breaches a statutory duty which is independent of the contract.

That sounds like a technical point, but it is not very difficult to understand. Sometimes statute makes the duty a part of the contract. Members of the Committee will know, because they are interested in the matter, that in the Equal Pay Act 1970 and in the Employment Act 2002, duties on employees and employers were made part of the contract by statute. They therefore became contractual duties and rights—in the one case the equality clause and in the other case the right and duty to have disciplinary and grievance procedures followed before appeal to an industrial and employment tribunal.

Where the statute does not make the nature of the duty clear, it is frequently found that the statutory duty rests on the basis only of statute and is nothing to do with the contract. The issue for the courts is: what is to be done if it is broken, or, more particularly, what is to be done if any organisation induces its breach? I quote one case. In Meade v Haringey Borough Council in 1979, the union induced a breach of duty by the local authority and its custodians of schools which broke the Education Act duty to provide educational facilities. The Court of Appeal held—and very understandably—that this was an inducement of a breach of a statutory duty and could not possibly be protected by trade dispute industrial legislation, even though it was clearly a trade dispute because of the nature of the common law wrong; not because of the nature of the industrial conflict legislation, but because of the nature of the tort inducing breach of statutory duty.

Inducing breach of statutory duty constitutes unlawful means. A breach of statutory duty constitutes unlawful means. There is an argument, which I shall deploy to the Committee if it becomes necessary in reply, as to precisely what kind of illegality that is. There are unanswered questions in the courts. The Court of Appeal in 1989, in the most important authority, itself showed how difficult that area is. But there is absolutely no doubt on the basis of that judgment, which went to the House of Lords on quite different matters, and on the basis of some 50 other judgments—which I am perfectly happy not to deploy today, but to place them in a document which will be available to the Committee if it wishes—and especially in the light of Mr Justice Laddie's summary of the law on unlawful means in a large judgment of 2001, it is perfectly clear that a breach of a statutory duty is unlawful means.

As I said to the Committee at our last session, for the award of an injunction in industrial action cases, all that has to be proved is an arguable case that wrong has been done. Therefore, once the claimant claims an arguable case and the court sees the balance of convenience and public interest favouring the claimant, which at that point it often does, an injunction will be issued. I, and some other Members around the Table, have been in cases time and again where that has happened. Often, we have tried to argue that no common law wrong has been done, but if Members of the Committee now try to argue that where there has been a breach of statutory duty, they will be met by the authorities which I shall cite, if necessary, in reply.

I am summarising my case. The noble Lord thinks the summary is too long. I am sorry, the case is complex; it is a complex Bill. I direct the noble Lord's attention to Clause 1(8). It illustrates that the Government have gone some way towards solving the problem in which there is a breach of duty by a fire authority employer. I moved an amendment in our last meeting suggesting that it should be even more explicit. It says that it is a duty of a fire authority employer to comply with a direction made under an order; it does not tell you what will happen if it does not. I said that I could not believe that the Government wanted all third parties who might be damaged by such a failure to comply to have the right to go to court to seek injunctions. If so, there would be a flood of litigation.

The Minister will tell me if I am wrong, but, as I understood him, that did not worry him at all. He thought all possible third parties should have the right to bring action for a breach of duty. If the same is true—as it appears to be from the mere silence of the Bill—that it is a breach of duty for a fire brigade member to break an order made which affects him in terms of his employment, and if it is true that a union that induces that breach of the order is inducing a breach of a statutory duty, there is no protection in strike law, trade dispute law or trade union law for that industrial action.

Of course that makes extraordinary the Government's insistence that nothing in the Bill will affect the legality of industrial action. Someone, somewhere has either overlooked the point or thought somehow that it was not relevant. I think I know why that is. I shall conclude by saying so. I believe they have concentrated only on the point they have made, although they have made it inaccurately in their White Paper by misquoting the section involved. They think that it is all about whether the Attorney-General can bring an action. He might bring an action, but centrally it has nothing to do with that whatever. What it has to do with is the right of every citizen—which I take the Government, from what the Minister said last time, will not in any way try to stop—to bring an action for an injunction to stop strike action where he thinks it is illegal using unlawful means and where he claims his interests and his property may be involved.

Indeed, the Minister has pressed upon us the fact that orders will be made under the Bill, only when there is a crisis or, as I remember, an emergency. In a crisis or an emergency, many people might feel their interests were involved. It may amuse the Minister but it does not amuse them, and they are likely to seek injunctions. On my reading of the Bill and the authorities, which I shall be happy to cite, they very likely in most cases could do so. Our amendments try to stop liabilities in industrial action being extended by the Bill. At the moment, the courts would be entitled, and indeed very likely obliged, to hold that those strikes and threats of strikes would be illegal on the grounds I have outlined.

Our Amendment No. 34, and, although in rather less perfect form, Amendments Nos. 35 and 41, are alternatives for the Government not to let the Bill open an avenue for injunctions against strikes because of a breach of the Bill. They say they do not want that. Therefore, I urge them to accept, at any rate, the thrust of our amendment, especially Amendment No. 34, which is the best—if they want to redraft it, that would be quite normal—to get rid of what is in fact a threat to the legality of strike action by fire fighters and their union, which the Bill, as drafted, at the moment presents. I beg to move.

Lord Campbell of Alloway

One addresses the Grand Committee under a very potent threat that the noble Lord will return to his authorities if any proposition of law which is stated is disputed. The noble Lord knows perfectly well—we have been against each other several times in the courts and at times in the Appellate committee—that I cannot possibly accept his exposition on certain aspects of the common law, and would never do so, and why I would not. However, I have no intention of entertaining esoteric legal discussion here today. I just want it to be noted that, as far as I am concerned, I am unable to accept the substance of the noble Lord's assertions.

My reason for rising was really to make the point that these amendments are in a sense looking at the reform of trade union law dealing with these common law authorities, putting an interpretation on them that may or may not be legitimate. However, this Grand Committee is not the Appellate Committee of your Lordships' House. These amendments, put forward in this way, all but breach the limitation of the long title and the intendment of what after all is an ad hoc, short-term Bill under which conditions of service may be imposed by government decree to resolve fire brigade disputes.

4 p.m.

Lord Wedderburn of Charlton

Will the noble Lord advert to the words of the amendment? They deal with the, contravention … or non-compliance with this Act". They are not concerned with anything other than "this Act".

Lord Campbell of Alloway

Yes, I will follow the noble Lord's lead in many ways, and I shall take my own course.

What I was going to say was that this is an ad hoc, short-term Bill as a matter of construction under Clause 1(1 )(a), under which conditions of service may be imposed by government decree to resolve— what?— only fire brigade disputes and to resolve them on their own terms. I suggest that regardless of whether the noble Lord is right in his assessment of the inferences and implications of the common law to which he referred, these amendments are not appropriate for a Bill such as this. They are appropriate only for a Bill of general application as part of the long-term strategy to reform trade union law.

The proposal for reform will be of general importance. It is urgently required. It is understood that another Bill will be brought in about a year, year and a half or two years. The proposal will have to be set out in a White Paper. It will have to be discussed and then debated in Parliament. In those circumstances, I really do not think that it is right to support these amendments to this Bill.

There is a final matter which is complicated hut none the less strange. I very briefly referred to it to the noble Lord, Lord Wedderburn, on his way to the dentist or something this morning. Under the Bill as drafted, the members of the fire brigades are put at a disadvantage in relation to members of other trades unions in disputes affecting the public services. So there is a disparity there. Under this group of amendments, the members of the fire brigades are put in a position of advantage over members of other unions in relation to such disputes. The interpretation given by the noble Lord to the common law, to which I have referred, is beneficial to these members under this Bill. However, that is not available to the rest of the unions which are not affected but are subject to the law which—as the noble Lord said, and I agree with him—leaves unresolved areas.

Baroness Turner of Camden

Does the noble Lord agree that the wording of these amendments relates precisely to this Bill? We are not talking about a White Paper. We are not talking about anything but this Bill, what this Bill says and the absence from this Bill of certain protections which we think should be there, even in a short-term-type Bill.

Lord Campbell of Alloway

I am obliged at the intervention. I agree with the noble Baroness that they are nothing to do with the White Paper. I did not say they were. They are related to the Fire Brigades Union.

Baroness Turner of Camden

To this Bill.

Lord Campbell of Alloway

In fact I said they were. The fact remains that there is this disparity one way or another. It arises on the amendments because the amendments pre-empt an interpretation of the common law which favours the fire brigades to the disadvantage of the other unions in the public services.

This is far too technical to deal with. I have only made the point. I think that it is a point of substance. I apologise for having taken so long. I oppose the amendment.

Lord McCarthy

Ministers seem curiously reluctant to speak. We must go on.

The Minister of State, Office of the Deputy Prime Minister (Lord Rooker)

I will reply to the debate. That is what I normally do.

Lord McCarthy

All right; do not get cross. I want to get back to the Bill anyway.

The essential point, we are saying, is that no one has told us in so many words whether the case is as we fear it is or if it is not. This seems an appropriate moment, the first possible moment, for the Minister to reassure us that, "In the opinion of the Government we've got all this wrong. If you like, we agree with the noble Lord who has just spoken". We think that we have reason to believe that when this Bill is passed, all kinds of liabilities may develop for trade unions—the Fire Brigades Union and its members—and for certain other parties involved. We want a government assurance that we are wrong. I suppose someone should say that, if we turned out to be right, the Government would do something about it.

The first question may be whether the Government want to take the risk that they are wrong and there is a liability. Are they saying, "No, there is no risk. So we don't have to take it"? I do not think they can really say that. Or are they saying, "Well, if there was a risk, then we would immediately act to set it aside"—in the same way that, for example, Harold Wilson said that he would set aside the effects of Barnard. It took him three years, but ultimately he did it.

Or, as the noble Lord said before me, they may say, "Your formulation is all wrong". We are very used to that. We have suggested all kinds of amendments. When the Conservative government were in power, I suggested dozens and dozens of amendments. Very often they turned me down by saying, "You've got the words wrong. You've put the semicolon in the wrong place. It doesn't mean what you want it to mean". Our answer was quite simple, though the then government never accepted it. We said, "The government are the experts. If you are behind the principle, afraid of the possible consequences and averse to the risk, then you should find the form of words. Give us a form of words. Give us your form of words". Sometimes they did.

If the Government do not say any of those things—if, as I fear, they are going to remain silent today—then it is very difficult not to come to the conclusion—I am reluctant to come to this conclusion because it is so fearful—that they are thinking, "It is a jolly good thing if there is a risk". So what? So there is a liability that may take some time to emerge. A third party may advance a claim as my noble friend suggests. If that happens but workers continue to work as before while the employers try to impose one or another of the changes; and if someone is denied a service which creates a dangerous situation and they bring an action, we will simply say, 'Serves them right'.

If there were a strike, official or unofficial, and the union were found to be in breach not of existing law in relation to breach of contract, but of these orders, then the Government would say, "Jolly good thing. Fair enough". My noble friend and I want that point to be cleared up. We want Ministers to clarify that for us today.

I should like very briefly to remind Ministers of three points. The first has to do with statutory protection. The promise that the existing framework of law would protect workers has been made on very many occasions. Although workers were assured of that by those in authority, it has turned out to be totally wrong. In 1875, trade union leaders thought they had achieved a legislative framework which would remove both criminal and civil liability in industrial action. But they turned out to be wrong. They thought that they achieved it again in 1906, when they finally got the Trade Disputes Act 1906, but they turned out to be wrong. The same happened again in 1961 in relation to Barnard. It has happened over and over again. So, based on the historical record, no one can say that it might not happen on this occasion. If so, I do not see how the Government can take the first option of saying that there is no possible chance of that happening.

Secondly, within the next six months, we are going to see the Government and employers attempt to put through a very considerable programme of change. The White Paper contains the objectives, and they are going to try to do that within the next six months. When they have the White Paper, they will not wait for legislation. They may introduce legislation in relation to additional powers, but the changes in relation to grading, management structures, additional responsibilities, shifts, personnel policies and the location of work will be negotiated in the course of those six or nine months in order to ensure that the unions get the next tranche of money.

So we are not talking about a distant period when there may be further legislation. We are talking about this Bill and this Act. The Government will seek to use orders; indeed, the Secretary of State says that he will have to do that. In the White Paper, the Secretary of State says that there is not a chance that the changes they want will be agreed by the parties concerned. So I say that there is a very real possibility that this will happen. It is for the Government to tell us the answer.

Thirdly, it is not as though the Government are proposing to introduce the changes by greatly expanding collective bargaining. One aspect of the White Paper is that it is extremely authoritarian. There is no attempt to develop, for example, a partnership in the fire service. The Government are in fact proposing to restrict the right to collective agreement so that, when they get the next Bill through, they can nominate those who negotiate on the part of the union. In that context, we are bound to ask for some reassurance that there will be action by the Government if any of those developments arise.

In concluding my remarks, I want to say one word about the way in which my noble friend Lord Wedderburn began his speech. There is no malpractice charge among us; we do not charge anyone with malpractice and we do not believe that anyone else should charge us with it. There was no attack on good faith; there was full co-operation with the Whips' Office, as there always has been. What we are trying to do, and had thought that we were doing—which in the past has been accepted—is to explain that we see a dark future for the trade union movement, and particularly for the Fire Service, if this Bill is passed.

4.15 p.m.

Lord Rooker

I hope that I can satisfy my noble friends as to the intent and purpose of the Bill and show them that the amendments are unnecessary, because they are seeking to provide for something that already exists. My one controversial remark is that the amendments are not intended to revise the Bill—these are not revising amendments. They are legitimate amendments, but they are not revising amendments. They deal with what happens if the relevant trade union or employer decides not to comply with the orders made under the Bill. It is clear from what both my noble friends have said that they are concerned about what happens in the event of non-compliance by fire brigade members or their trade union. They are seeking clarity, which I hope to be able to give them in a short time.

My noble friend referred to the legal background to the issue—the Trade Union and Labour Relations (Consolidation) Act 1992. It sets out limited protection against dismissal for employees when there is an industrial dispute that has followed the proper balloting procedures. The protection from legal action is also given by the Act to those inducing or taking part in industrial action, provided that proper balloting procedures have taken place. That is a fundamental principle, and it is not something that we are seeking to interfere with.

Amendment No. 34 appears to try to side-step the requirements about ballots of the 1992 Act. I say "appears" because the opening sentence of my notes about purpose and effect states that Amendment No. 34 is somewhat unclear in its effect. Its effect would be to ensure that failure to comply with an order under the Bill is not unlawful as a tort, and nor is inducement or incitement to commit a breach or non-compliance. The Government consider that a very unattractive picture.

If the Bill became law and the Secretary of State were to make an order under Clause 1(1)(a) that altered shift patterns, for example, a trade union could incite staff to breach their new terms and conditions without being liable in law. What is more, a union could call its members out on strike without balloting them, and still enjoy the protection given by the 1992 Act. That is why the amendment is incredibly unattractive. If a union or an employer did not like what was contained in an order made lawfully under the powers in legislation that had passed through this House and another place, it need not worry. It could with impunity ignore the order and incite others to do the same, which would mean that unions representing fire brigade members would be given special treatment not available to workers in other industry, because the Bill applies only to the Fire Service. That is why the amendment is not constructive and why I would argue that it does not seek to revise the Bill. I cannot see how it would help the fire and rescue services to run more effectively.

Amendment No. 35 has a similar effect. An act done as part of a trade dispute would not be actionable if it only involved breach of, or non-compliance with, an order under this legislation. Non-compliance with other legislation would be actionable—it is only this legislation that would not count. The union would not even have to ballot its members about strike action to gain the protection available under the 1992 Act. That is a loophole—although I always thought that loopholes happened by accident, and this one is quite clearly intentional. It would not apply to fire authorities or to their duty under Clause 1(9) to comply with the orders. Under our interpretation of Amendment No. 35, firefighters could quite rightly sue for non-payment by their employers of an imposed pay rise, for example. How can it be right that firefighters, other staff or their unions could ignore the orders under the Act but employers could not? That is not a good way in which to build industrial relations in the service—or, indeed, to rebuild them.

It is true that amendments of this kind could in certain circumstances provide opportunities for the fire brigade staff and their unions to frustrate the purpose of the orders made lawfully under the Bill. I do not believe that members of the public would see it quite that way. If the Bill passed into law, it should be treated with respect. If people disagree with that, as my noble friends obviously do, I respect their position. However, it would be better to address that directly than to build into the Bill positions that deliberately undermine it. The amendments are not revising the Bill in any way, shape or form.

Lord Campbell of Alloway

With respect, the amendments are revising the Bill in a very effective way, because they alter the whole scheme of implementation. They pre-empt an interpretation of the common law decisions that favours their point of view and opposes the Government's. They are fundamentally revising the provisions related to the Bill.

Lord Rooker

Well, that is my fault for not being a lawyer. The Lord Chancellor has been on his feet on the Floor of the House saying that judges should not be part of this place. There is an argument that lawyers should not have anything to do with making the law and that they should leave it to us lay people, who use common sense. I did not bring my dictionary with me today, but I would have thought that the word "revise" did not mean root and branch rewriting of the fundamental principles. That is what the amendments would do—they would frustrate the operation of the Bill. To that extent, they do much more than revise, and that is how I have used the term.

Baroness Turner of Camden

The Minister said that we were seeking extra protection that was not available to other employees. Amendment No. 41 makes specific reference to that section of TULRA that relates only to protected strike action. In other words, we are not seeking in the amendments—particularly not in Amendment No. 41—to put into the Bill some sort of protection for fireworkers that other employees do not have.

Lord Rooker

With respect, I have not dealt with Amendment No. 41 yet.

Baroness Turner of Camden

No, but the amendments are grouped together.

Lord Rooker

Yes, my noble friends grouped them together. The point made by the noble Baroness applies to what I have just said about the other amendments. There would be a protection. I am being really shorthand, and I know that this is only fourth form, but it would mean that people could go on strike and have a dispute without a ballot, and that they could do it with immunity. That is more or less the import of Amendments Nos. 34 and 35. Because the Bill applies only to the Fire Service, the firefighters would get those powers. That is a short way of putting it, and I realise that it would not get many marks out of 10, but it is what would happen in common sense.

Amendment No. 41, like other amendments to which we shall come later, seeks to extend the protection available under TULRA. My noble friends are of the view that the amendment is required to afford the same protection to individual members of staff who breach an order or to anyone inducing such a breach. We have said repeatedly—and it is on the record, in Hansard, although I have not brought chapter and verse with me—that the Bill does not touch on the ability of firefighters to take industrial action.

Lord McCarthy

You cannot say that.

Lord Rooker

Well, I am saying it. That is our position, and it is what has been said from the day when the Deputy Prime Minister made it clear in another place. We are not attacking the right to strike—the Bill is not about that. In fact, there is a discussion of that matter in the White Paper. We have no plans to attack, undermine or weaken the right to strike, as currently set out in the law. I am just about to make that position abundantly clear in respect of Amendment No. 41, because it is unnecessary.

We have made our position clear. The Bill is not about the right to strike; it is about giving the Secretary of State the ability to deal with any further dispute by removing the cause of the argument. If people do not like what the Secretary of State does and have a ballot under the law, as required, and go on strike, there is no problem. However, the first two amendments appear to get round that position by avoiding the need for a ballot. The fact is that, under the law as it stands, if a ballot takes place in further trade disputes, the protection will be there. Therefore, Amendment No. 41 is unnecessary in the sense that it puts on the statute book something that is already there. We do not want to affect the right to strike—it is not part of the Bill. Amendment No. 41 asks us to do something that is not required. People are already protected under the existing law.

If the Secretary of State makes the orders under Clause 1(1)(a), they immediately become part of the terms of conditions of the staff, and the union does not like them and decides to ballot its members on whether to take industrial action to protest against the order, the resulting industrial action would constitute a trade dispute. They have had a ballot, so they can go on strike. Therefore, Amendment No. 41 is unnecessary.

I hope that I have clarified our position for my noble friends. We are not seeking to attack the right to strike, and Amendments Nos. 34 and 35 would go to the heart of ripping out the purpose of the Bill and frustrating it. We do not think that that is very good—the Government could not support it. Amendment No. 41 is simply not required because the rights are already there and protected.

Lord McCarthy

Let me try again. I said that the Government could not say that the Bill did not give rise to liabilities because they are making a statement about the future. I did not say that they intended that. My noble friend and I are asking the Government to tell us that they do not intend that, and that they will do something if they turn out to be wrong.

The Government are making a statement about the future. In 1875, in 1906, in 1961, in 1974 and 1999, the relevant authorities told us that it was safe. They did not intend to increase the liabilities on trade unions and their members; indeed, they intended to make industrial action lawful. They meant that at the time, but it is impossible to say what the common law will do or what the judges will do. We might have an idea, but we cannot talk about the precise way or case that would transfer the liabilities to the Fire Service—and neither can the Government.

We are not attacking the Government's bona fides. We are saying that that is possible, if the future resembles the past. My noble friend Lord Wedderburn says that he has concrete cases in which the past has resembled what we fear in the future. Why will the Government not tell us that, if that is how matters turn out, they will take immediate action to set the provisions aside, because they do not intend for that to happen?

4.30 p.m.

Lord Wedderburn of Charlton

This is not easy, because I have been challenged as advancing false propositions of law, so I have to make them good—and I shall. Before I do so, I must say that this new doctrine that lawyers should have nothing to do with making the law is not one to which I subscribe. In making the law, noble Lords should consider the law as it is. Sometimes lawyers who have spent 50 years with a subject may be helpful—and sometimes not—in explaining the effect that it might have on a misplaced provision or absence of provisions in a Bill.

Amendments such as all three of those to which the Minister spoke, which refer to what should happen by reason of the Act, are hardly a programme for general law reform. Nor is it true that they are, in a sense, out of order because they are not relevant to the Bill or they frustrate it. I am trying to secure one very simple proposition. I am trying to secure in law—I am sorry to be a lawyer speaking about the law but I have no alternative—that what the Government say they intend is reflected in the Bill. At present, it is not.

Your Lordships have the Law Lords in the premises at present, instead of their being in a new supreme court, which will be the case in the near future. I greatly welcome that, not because I want to see them go—they are a great joy to have—but because the noble and learned Lords are your Lordships' Appellate Committee as the highest court in the land. It just so happens that last week, on 11th July, the Law Lords delivered a unanimous, very important decision in the case of Wilson v First County Trust (No. 2) in the House of Lords. The noble and learned Lord, Lord Hutton, gave the opinion. Without going into the detail, the question, among others, was the extent to which ministerial pronouncements and other similar pronouncements were useful in interpreting Acts of Parliament. I shall read the whole text if the noble Lord wishes, but I am certain that the following is relevant and not out of context. The noble and learned Lord, Lord Hutton, said: The occasions when resort to Hansard was necessary … would seldom arise. The present case was not such an occasion. Courts had to be careful not to treat the ministerial or other statements as indicative of the objective intention of Parliament nor give a ministerial statement determinative weight. It should not be supposed that members [Members of Parliament] generally agreed with the minister's reasoning or his conclusions".

We keep hearing what the Government intend. That will not be necessarily—or, indeed, in this case, probably—what the courts see as the intention of Parliament. Ministers are not Parliament. They may take powers to make orders determining rights, but what your Lordships decide should go into the Bill will be construed by the courts as determinative of what is Parliament's intention.

Mr Justice Laddie, in Michaels v Taylor Woodrow [2001] Chancery Report 582, said: the courts are trying to implement the presumed intention of Parliament. if Parliament has considered the question 'what relief should be available to a person harmed by breach of this legislation?' and has furnished an express answer it is not for the courts to legislate other forms of relief … If no relief is specified then the court again has to decide what was the legislative intent. It may be that, from a consideration of the whole of the Act and the history of the legislation, the legislative intent is found to be not to give any rights of action to harmed individuals at all. But where no relief is specified the court may be more willing to assume that the legislative intent was that the common law should provide a cause of action". Although I am not entirely clear, as I understand it, the Minister was saying, "Yes, some kind of remedy should be provided by those harmed by a breach of duty under the Act", whether it is a breach of duty of a fire authority, which we debated in the previous Committee sitting, a breach of duty on the part of members of the fire brigade, or—and this is the most important—a breach caused by an inducement of a breach of statutory duty by a union or indeed any other person.

That is why the Bill as it stands raises the issue of breach of statutory duty. Breach of statutory duty is a form of unlawful means. There is a technical issue on the case law, which I shall try to summarise in a sentence without citing. The issue, which is not difficult to understand, is whether a breach of a statutory duty is of a duty that is immediately remediable by a person affected as a class of the public—which is a term of art—or whether it is not immediately remediable by the person damaged but simply stands. in a sense, by itself. The question, therefore, of whether a narrow or wide meaning is given to unlawful means in the sense of breach of a statutory duty is of central relevance and issue to the case and the Bill. With the greatest respect, the Minister's reply did not understand the case. Although inferentially he gave an answer, he did not tell me clearly whether a breach of duty by a fire brigade member, a union or a fire authority is meant to be a directly remediable breach of statutory duty.

There are so many decisions on the matter that it is difficult to know which to cite. Since I must do so, I shall first cite Michaels v Taylor Woodrow Developments Ltd., where Mr Justice Laddie, in 2001, summarised many, many of the past authorities. I think that in that case he cites around 12 leading authorities, which I hope the Minister's advisers have read. If they have not, what is the point of having advisers? I would hope that the Ministers would read it. Mr Justice Laddie said in that case that many torts are involved in the problem of breach of statutory duty and unlawful means generally—usually referred to as economic torts, conspiracy, intimidation, inducing breach of contract and interference with trade or other rights by unlawful means. He said: There is much to commend the suggestion that the principles which apply to economic torts should be consistent with each other. After all, these are creations of the common law and it is difficult to see why, for example. an unlawful act which is sufficient to ground a cause of action for unlawful interference with trade should not also be sufficient to ground an action for unlawful means conspiracy and conversely why an unlawful act, if any, which is insufficient to support one should not also be insufficient to support the other. If different types of unlawfulness will support different common law causes of action it would give rise to a degree of obscurity in the law which serves no useful purpose. The point is made particularly clearly in Clerk & Lindsell on Torts, 17th ed (1995), pars 23–61: 'Since the four species of tortuous liability, intimidation, indirect procurement of breach contract, conspiracy to use unlawful means, and unlawful interference, all depend upon proof of an illegal or unlawful act threatened or employed by the defendant, it would make for brevity, logic and elegance if the principle could be stated that the definition of "illegal- or "unlawful" was the same under all four rubrics. The reason for the requirement is clearly the same in all four cases'". He then says that, unfortunately, as the book says, that is not clear in the case law. I must declare an interest immediately, as that judicially approved citation was from a chapter that I have edited for 40 years. I am happy to agree with the learned judge. He then quotes other cases that say the same. So, as he puts it, everything depends on what is meant by unlawful means. Does that include the wide meaning—any and every illegality—or does it mean only a very narrow interpretation, especially on statutory duties?

In Williams v Department of Transport, in The Times Law Reports, 7 December 1993, and the Court of Appeal (Civil Division) Transcript No. 1382 of 1993, Lord Justice Dillon and his brother Lord Justices faced the case where protestors had held up construction of a bypass over Twyford Down. Members of the Committee may remember the case. Protestors had interfered with the construction of the bypass being engaged upon under statutory powers. Their actions were said to be breaches of orders and regulations under the Highways Act 1980. Lord Justice Dillon recorded the defendants' counsel as accepting that, injunctions to be granted for the tort of wrongful interference with business if the appellants interfered with the plaintiffs' activities by unlawful means. But … they do not accept that section 303 automatically renders any wilful interference illegal, because section 303 merely provides for a fine". In other words, that was the issue in the case. He concluded: I accept [the] submission that an injunction founded on the tort of wrongful interference with business can be granted if Mr Ward interferes with the plaintiffs' motorway building activities and ancillary activities by unlawful means … by virtue of section 303 any wilful interference is unlawful, and, in my judgment, constitutes unlawful means for the purposes of the tort". He then cites another two House of Lords cases, from 1949 and 1982, and concludes: The claim is founded on a recognised tort at common law, just as the claim in trespass is, and anything which is illegal under any statute provides the unlawful means". Anything which is unlawful under any statute provides the unlawful means. On that basis, an injunction can be granted. Not only that, even if Lord Justice Dillon were wrong ultimately as it is found in this dispute about exactly what are unlawful means, on which there is a vast literature, it will not be finished in two years. For the next two years, the question is a live one Illegal means is arguably based upon anything which is illegal under any statute.

Members of the Committee will remember that, at the previous sitting, I submitted that all you have to do to get an injunction, where the balance of convenience in the eye of the court is in your favour, is prove that you have an arguable case. Lord Diplock called it, a serious issue to be tried". Is the Minister, his advisers or anyone telling me that when it is common ground between us that it would be illegal to defy an order under the Act, and that it would be unlawful to refuse to work? I believe the Minister gave the example of shift patterns, where the order says "You will work those shift patterns" or "You will move this appliance from one station to another", but feeling on the ground is so high that people refuse. It could be that they appeal to their union officers and the officers say that they are supporting their members. In that situation there is a threat or actual breach of the order. That is illegal. It is a breach of a statutory duty, which we hope to imply into a contract, because if it were a breach of contract duty then there would be protection under Section 219.

I break off to refer to the opening words of Amendment No. 134. The Minister made a particular point, saying that the opening words, An act shall not constitute an unlawful act or unlawful means for the purposes of the law of tort by reason only that it is … a breach … of … this Act were not relevant to the Bill. The whole point of the legality of industrial action rests upon three things: first, whether it is wrongful at common law; secondly, whether the Trade Union and Labour Relations (Consolidation Act 1992 protects it—largely in Section 219—and, thirdly, whether all the other procedures have been complied with.

I wish to make the following point as briefly as I can. The Minister raised what I can only regard as the quite mystifying argument that somehow all three of our amendments displace requirements for ballots. They were improperly understood; they do not. It is true that Amendment No. 41 mentions them because I thought that the Minister would raise the point—it is the usual point that people make. Our amendments say nothing at all about displacing obligations for ballots. If noble Lords would like actually to read the amendments instead of talking about them they will see that that is the case. I cannot stress that strongly enough. The idea that this is some conspiracy to avoid ballots is so wrong that it defies words.

I have one further authority to refer to. I am sorry to refer them to Members of the Committee, but if you want to discuss the law, you had better discuss the law and make good law. It is quite clear that an injunction can be obtained on the grounds that I have submitted. In Associated British Ports v TGWU [1989] 1 WLR 939, the Court of Appeal granted an injunction against the dock strike of 1989. It was granted on the basis that the union had taken action to call the strike which infringed the obligations of dock workers under the dock works regulations.

The Court of Appeal accepted that the dock works regulations gave no right to the employers to sue for mere breach, but because there would be a breach of statutory duties, this would be unlawful means. All three members of the Court of Appeal accepted the general proposition put forward by Lord Justice Denning, as he then was, in Daily Mirror v Gardner [1969] 2 QBR 762 where he stated that if one person deliberately interferes with the trade or business of another and does so by unlawful means, an act he is not at liberty to commit, he is acting unlawfully even though he does not procure any actual breach of contract, and went on to say that an injunction would be granted against him. Were I submitting the case in full there would be a large number of other authorities, which in the past five years have accepted and applied that principle.

I want to conclude by saying that that is my case on the law. We are making law so it would be useful to attend to what the law is. I appreciate that the Government have reached this curious conclusion that it is impossible for them to be wrong when they say that their Bill does not threaten the legality of strikes. It would be more useful if they attended to Cromwell's great cry: I beseech you, in the bowels of Christ, think it possible you may be mistaken". The case against them is very strong. I have cited the authorities. If I have missed out authorities which are relevant to the case, I would be happy to consider them either now or at any future time.

Amendment No. 35 is an inferior alternative to Amendment No. 34, and Amendment No. 41 is not the best way of doing things. So, if we take a stand on anything, it is largely on Amendment No. 34, but there are alternative words which could be considered in those other amendments. We have seen that the union will not be granted a chance of arbitration, or its members. We have dealt with arbitration in previous amendments. If they object to the terms of an order made after consultation with the National Joint Council they will not be granted any third party assistance. The Minister, the Secretary of State, will impose the order. If they offend it or induce the offence of it they will be acting illegally. On the basis of that an injunction could be clearly granted, trade dispute or no trade dispute. Of course it may be a trade dispute, but there is no protection against inducing a breach of statutory duty. There is no protection against unlawful means in this form, nor should there be. There should be no general protection for inducing breaches of statutory duties in general. I do not want anyone to have the right to induce a breach of the regulations and statutes about driving dangerously; of course I do not. What I and my noble friends say is that this Act should not extend the range of illegality in industrial disputes against fire-fighters and their union because that is the implication that we see in it at present.

I have no alternative but to withdraw the amendment, most regrettably. It seems that the Government are not going to—

4.45 p.m.

Lord Rooker

You can withdraw it when I have finished. You can withdraw it when you like, but if I am going to say anything I have to get up before the magic words are uttered, which is why I stood.

To cut a long story short, if an order is issued under the Bill it directly operates on the conditions of service of members of the fire brigade. The conditions of service are altered by the operation of the law immediately the order comes into force. It is therefore impossible to avoid being outside the order or failing to comply with the order because the order is imposed immediately and has an immediate effect on the conditions of service. Once the order comes into force, the fire-fighters' conditions of service are changed at that point. If they do not like it, and a dispute arises and they have a ballot, they are free to strike. That is the end of the story, in a short, common sense way of summing-up.

Lord Wedderburn of Charlton

I appreciate that what the Minister said is right. It is quite right that if they have a ballot thus far they are protected. If it becomes a contractual matter, they may be protected. We will come to that on Amendments Nos. 37 and 39. That is the separate issue we have raised in those amendments. That is why we have grouped the issues separately.

However, with respect, the Minister is wrong to say, that that is all there is to be said about the matter. If I depart from conditions of service under Clause 1(1)(a), I turn to an order under Clause 1(1)(b). If an order under Clause 1(1)(b) requires a fire authority to move specialist appliances or to close a station—we have been over this ground and the Minister said in previous debates that yes, this may involve the closure of a fire station—there is then a legal duty statutorily upon the fire authority to comply.

If the members, the union or whoever it is object and threaten to take action in the form of industrial action against that, there is no protection anywhere, neither in the 1992 Act nor, certainly at the moment, in this Act. That means that an order under this Act, which is all our amendments are concerned with, can and clearly does extend the illegality of industrial action. That is quite clear.

We will come to contractual terms when we come to the relevant amendments. I deeply regret, as the last intervention by the Minister indicates, that the Government are quite resolute in refusing all these amendments. The ones we shall come to need detain us only a very short time because, as I understand it, they are against pretty well all of them. I hope they are not against Amendment No. 37, but we shall come to that. On this amendment I have nothing to do but, as I was about to do a moment ago, beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 35 not moved.]

Lord Wedderburn of Charlton

moved Amendment No. 36: Page 2, line 30, after first "service" insert "means contractual terms and conditions of employment and The noble Lord said: Amendment No. 36 touches on the question of the nature of the impact of the order made under Clause 1(1)(a) of the Bill. The Minister was absolutely right in stating that an order takes effect—he said immediately but it takes effect from whatever date it is to take effect from. Often, as he suggested in previous debates, it will be made only in the context of a crisis, so it will presumably take effect immediately.

What we ask in this amendment is for a change in the Bill in this respect. At present it appears to impose a statutory duty upon members of fire brigades to comply. I take the case of changes, perhaps, in shift pattern, changes in hours or changes in other duties, at any rate. Where that is so, a statutory duty imposes itself on all those to whom the conditions of service apply to conform and comply with the order.

There is an alternative way in which that can be expressed. I have already touched on it in previous discussions and shall summarise it in this way. An Act of Parliament can state, "This duty applies to you through the conditions of your contract". That is what is stated in Section 29 of the Employment Act 2002 and Section 1 of the Equal Pay Act 1970, which came into force in 1975. Parliament does not often do it but it does sometimes.

If the order came into effect, as we advance it should in Amendment No. 36, through the contractual terms of conditions of employment and not otherwise, although I have to admit that "not otherwise" will come up under a later amendment, the protection in Section 219 of the Trade Union and Labour Relations (Consolidation) Act 1992 would apply if the union induced a breach of contract because Section 219 applies in trade disputes and now applies where there has been a ballot—this amendment also has nothing to do with ballots—and where all the other conditions—there are far more conditions than that in the Act, of course—are satisfied and the Act is in furtherance or contemplation of a trade dispute. Then, if it is contractual it will fall within the words of Section 219 that there is no action in tort to be brought where it induces a breach of contract. That is quite different from inducing a breach of statute, as such.

I hope that the Minister will look again at all his stuff about giving people complete immunity. Making a thing not actionable in tort is a very specific legal protection. It does not protect you for breach of contract or breach of statutory duty; it protects you from actions in tort, civil wrong other than breach of contract.

So, Amendment No. 36 would provide some protection. It would not provide sufficient protection. It is the narrowest, smallest possible amendment that could do something to rectify the silences of the Bill. It would provide protection in industrial conflicts where at present protection is not provided for inducing a breach of contractual terms.

Grouped with Amendment No. 36 is Amendment No. 43. That amendment would add a new subsection which states rather more firmly: (6A) To the extent that this Act or an order made under it places any duty upon a fire brigade member, it shall take effect as an obligation implied into his contract of employment and not otherwise". That covers much the same ground as Amendment No. 36, but it goes on: (6B) An act done by a member of a fire brigade in contemplation or furtherance of a trade dispute shall not constitute a breach of contract by reason only that it is in breach or contravention of or in non-compliance with this Act or any order made under this Act", and it provides that "act" includes "deliberate omission".

The reason for the extra bit is quite clear. It relates to the case mentioned by my noble friend Lord McCarthy when he addressed the Committee recently.

In 1964 in the case of Rookes v Barnard [1964] AC 1129, which is etched upon my memory, the House of Lords Judicial Committee decided that not only inducing a breach of contract was unlawful means, but a breach of contract by itself—there, it was a breach of an employment contract—was equally unlawful means. So, to threaten a breach of contract, to engage in an agreement to break a contract, was a tort. Lawyers gave them the names of intimidation and conspiracy, but nothing turns on that. Therefore, what is done is that Amendment No. 39, as proposed new Section (6B), adds this: that that doctrine does not apply to make an actual breach of contract into unlawful means because, as it says, where it is, in contemplation or furtherance of a trade dispute then by reason only that it is a breach or non-compliance with this Act it should not extend the unlawful means doctrine and make for a further illegality.

5 p.m.

Baroness Hamwee

Just to show that I am listening a little, the noble Lord referred to Amendment No. 39. Did he mean Amendment No. 43?

Lord Wedderburn of Charlton

I am very grateful to the noble Baroness. I meant Amendment No. 43. That was what I was reading. I am so sorry. It is my fault entirely. My notes were in a form where I got the matter wrong. I meant Amendment No. 43. The Committee will see that proposed new Sections (6A), (6B) and (6C), which are proposed in Amendment No. 43, are in the form that I have outlined.

I hope that something will be said about Amendment No. 43. But central to this moment is to move Amendment No. 36. I beg to move.

Lord Rooker

I shall certainly speak—as my noble friend did—to Amendments Nos. 36 and 43.

As my noble friend said, Amendment No. 36 inserts some additional words into the definition of "conditions of service". The intention appears to be to limit that definition, and, therefore, to limit the order-making power in Clause 1(1)(a) to contractual terms and conditions of employment. I am not clear what effect that would have since any terms imposed by order under the Bill will be contractual in any case. It is difficult to know whether the amendment adds or removes anything. In some ways I have just made an argument for accepting my noble friend's amendment but I shall certainly not do so as to do so would be fraught with difficulty and would constitute uncharted waters. As I say, the imposition of any terms by order under the Bill is contractual anyway and therefore limiting the definition would not have any effect overall. As I do not know whether the amendment adds or removes anything, I shall reject it for the time being. My noble friend is always free to explore the matter at a later stage.

Amendment No. 43 makes any duties imposed by an order part of a fire-fighter's contract of employment. As I have just explained, any terms and conditions imposed by order under the Bill will be contractual anyway. Amendment No. 43 goes on to say that anything a fire-fighter does as part of an industrial dispute will not count as a breach of contract if the only thing he is doing is failing to comply with such an order.

We have legislation to which I have already referred—I realise this gets up my noble friend's nose but I have to refer to this legislation—which provides certain protection for industrial action taken after a proper ballot. Industrial action such as a strike is a breach of contract—I do not think anyone denies that—but the protection offered under the 1992 legislation means that someone on strike cannot be dismissed because of it. There is protection to that extent.

Amendment No. 43 would single out—as I follow its wording and my noble friend's speech—anything in an employment contract which derived from this Bill and would say that failing to do it was not even a breach of contract. I had a little trouble getting my head round that. It does not seem sensible law making to single out anything in an employment contract which derived from this Bill and to say that failing to do it was not a breach of contract. It would if it was in your contract. The order comes into effect immediately or on the date named. Generally speaking it comes into effect immediately. It would be part of the contract. There is no way of getting out of it. To do so would be a breach of contract. My noble friend seeks to include a measure in the Bill to say that if a measure in the employment contract is derived from this nasty Bill a special rule applies with the result that failing to do it is not counted as a breach of contract. That is not a serious point. It is not really about the finer points of contract law or employment law. It is certainly not relevant to the fire dispute or to the Bill. Clearly the amendment is intended to render at least some sorts of order under the Bill utterly useless. For that reason I must reject it.

Lord Wedderburn of Charlton

I understand that my noble friend the Minister finds the matter difficult. There are problems in understanding the law in this area. But as he was speaking what came back to me vividly was the parallel clause that we put in in our Labour government in 1974–76 legislation stating that a breach of contract done in contemplation or furtherance of a trade dispute should not be actionable in tort. The Tories took it out and got rid of it in 1980–82.

I am not allowed to move amendments that are outside the compass of this Bill. If my noble friend wants me to find some other legislation to bring back our great section of 1974–76, I would be happy to oblige. But on this Bill I am trying to bring back what we did in 1974–76. This Bill continues the policy of making it a breach of contract to go on strike, which is totally contrary to the conventions of the International Labour Organisation and various other international instruments which we have ratified. It not only does that but it invents a whole new area of breaches of contract. My noble friend the Minister now treats them as breaches of contract. I am grateful for that.

I am also very grateful for what my noble friend said about Amendment No. 36. I hope that further discussion can lead to the clarification of the Bill in that respect. I do not follow my noble friend's reasoning because he said that the amendment sought to limit the definition. There is no definition of "conditions of service" in the Bill. Clause 2(2) gives us an inclusion of things that conditions of service include. That is not a definition. That is an explanation that conditions of service include certain things. What I want to know is whether conditions of service apply— as regards an order in respect of conditions of service—in respect of a statutory duty to observe them or a contractual duty to observe them. That is all Amendment No. 36 is about. I very much hope that we can find a form of words for that which the Government will accept.

I must add in order not to be misunderstood that I do not think that is enough, although it will be helpful and reassuring to the union and its members who are very concerned about this matter. The Minister seems to think that there is no worry about this in the trade union movement. There is a vast number of trade union officials who understand these sorts of points very well. I shall refer the Minister, if he wants, to the advisers who are advising them about the matter. That is not me. I know who they are. I would be surprised if he did not. There is enormous concern about this Bill imposing new forms of unlawful means by statutory duty. One of those concerns—only one—is the meaning of "conditions of service" and the meaning, therefore, of inducing a breach of any conditions of service, and whether that applies contractually or merely as a statutory obligation.

Amendment No. 36 would help. It would not cure the problem but it would help. I am very happy to give my full co-operation to any further explanations that the Minister and his advisers want me to give. If we can reach an agreement on that by Report stage, no one will be happier than I. It is not my intention to do something to scupper the Bill. It is my intention to clarify the Bill and remove new threats of illegality in regard to trade union activity. I have no alternative but to withdraw the amendment. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Wedderburn of Charlton

moved Amendment No. 37:

Page 2, line 31, at end insert "but does not include conditions relating to termination or loss of employment by reason of redundancy or otherwise The noble Lord said: Amendment No. 37 is a little different. It suggests adding something to whatever definition or explanation of "conditions of service" means in Clause 2. The worry is loss of jobs. The reorganisation of the Fire Service is already going on. It is already being discussed and the Government obviously wish to have power to initiae— it--in the period before they bring in their big Bill—under the orders for which they have powers under the Act.

I remember very well that my right honourable friend the Deputy Prime Minister—I cannot quote the precise words—aid once that jobs would be lost through natural wastage. I believe that other Ministers have said the same. But whether or not that hope is wholly fulfilled—no one can predict precisely the future on that matter—our submission is that the terms relating to loss of employment which are not regulated by other statutes—this amendment has nothing to do with other statutory regulation; it is concerned with this Bill—should be a matter for negotiation. That includes any changes in redundancy arrangements other than those laid down by statute and statutory regulation elsewhere. I refer to any special arrangements on loss of employment matters. We do not see that the Secretary of State should have, or indeed needs, power to regulate employment situations concerning loss of job or loss of employment under the terms of an order in the terms of the arrangements in the Bill.

With Amendment No. 37 I speak also to Amendment No. 39 which raises a similar but rather different point. We group them in order to have just one debate on these two matters. As I say, Amendment No. 39 raises a different point. It raises the point that there is a description—again, it is not a definition—in subsection (3) of Clause 2 which reads: References in this Act to property or facilities belonging to a person include references to—

  1. (a) land occupied by that person; and
  2. (b) equipment or other assets or facilities the use of which is under the control of that person".
Of course I understand that. It includes those things but property can include a great deal more. Any court faced with the word "property" which is not completely defined, would include within the word "property" what is normally included in the law within the word "property".

Property belonging to a fire authority, for example, includes all of its bundles of contractual rights. That is part of its property. That employer holds contractual employment contracts. The rights and duties under those contracts are part of its property. It could be the case that the power of a Secretary of State by order to give directions as the Bill stands about use of property could give power to vary aspects of rights and duties which relate to the contract of employment. I am not saying that it is anyone's intention at the moment to make such an order, although I have to insist again— as I have done on previous occasions during Grand Committee—that future Secretaries of State may want to use the powers that they are given and not just rest with the intention pronounced by Ministers at the moment, which, as we have seen, the noble and learned Lords in the House of Lords' Appellate Committee have already said is not a good guide to the legal effect and intention of Parliament in a Bill.

All that Amendment No. 39 asks for is that we clarify this small point that property includes all the things that are stated at Clause 2(3) at the moment, but does not include the bundle of contractual rights arising from or under a contract of employment or a contract with any person who undertakes to do or perform any work or services". That is the normal form of words that is used relating to such contractual rights.

I very much hope that the Government will express some willingness to look at the definition of "property" under Amendment No. 39, which is much more like a definition. I hope, too, that the Minister will say something about the extent to which he sees loss of job problems in the very broadest sense being dealt with by negotiation other than under orders. I beg to move.

5.15 p.m.

Lord Rooker

I hope that I can give my noble friend an acceptable explanation, particularly on Amendment No. 39. It deserves one, and I think that I have one to offer.

As my noble friend said, Amendment No. 37 affects the definition of conditions of service. I use the term "definition" in its broad sense. I accept what my noble friend said about that. It excludes matters relating to the termination or loss of employment by redundancy. If we made the amendment, it would mean that an order made under the Bill could not improve redundancy terms. Because of the allegations about job losses, I want to get it on the record that the Deputy Prime Minister has said more than once that there should be no need for redundancies—the employers have said as much—in relation to the pay deal that has been agreed. The plans in the White Paper, which will lead, in time, to a smaller service, need not require redundancies either, so it is not on our agenda.

One thing is certain: we have no plans to use the powers in the Bill to change redundancy arrangements. We do not see that redundancies are justified. I fully accept that nobody can rule out the possibility that such things might come up in the future. There has been a presumption in many of our debates that all the changes that would come about because of the orders would be for the worse. That presumption will not be validated in practice. Amendment No. 37 would prevent any order made under the Bill—as I said, orders will be made under the Bill only in extreme circumstances; we do not want to operate the Bill—from being made to improve redundancy arrangements. We do not want any limitation on those powers, and we do not want to use the powers in the Bill in the first place.

Amendment No. 39 is slightly different, in attempting to provide that a direction under Clause 1(1)(b) cannot relate to rights arising under contracts of employment or contracts for the provision of work or services. I must make it clear—I think that I did so earlier—that directions to the fire authorities under Clause 1(1)(b) are not intended to be a direct or indirect way of affecting the employment contracts of fire brigade staff. I also gave the example that it could happen that a direction about the use of assets—the physical assets in a station—could have an impact on staff, but that is not the route by which we would seek to change the terms and conditions for staff. We have a power in Clause 1(1)(a) to do that directly, so there is no reason to use an indirect route.

I can tell noble Lords that we have no plans to use any orders made under Clause 1(1)(b) to affect the rights arising from contracts for works or services. It might happen, purely as an incidental side-effect of a kind of order. We do not want to use the power, and the Bill is drafted widely enough to cope with any disputes. We cannot give all the examples. I gave examples originally of appliances remaining in stations when they could be used by somebody else. Clearly, the public did not understand what happened during the previous dispute, so we must overcome that. If it were difficult or impossible to use the powers in respect of, say, an appliance or some specialist piece of equipment—the example that I have here is an aerial platform—that was needed, we could not say to the public, "Well, we would have liked to have an order to make sure that we could use an aerial platform, but we could not because it would have affected some exclusion in the Bill about contracts". They would laugh us out of court. They would laugh us out of office, that is for sure. We shall not go down that road.

The amendments would put arbitrary restrictions on the powers in the Bill and do nothing for public safety, which is why we need those powers. The only reason why Clause 1(1)(b) would be needed is to get our hands—the public's hands—on the public's assets in order to fight fires and save life.

Lord Wedderburn of Charlton

I am grateful to the Minister for his explanations. He took Amendment No. 37 first and then Amendment No. 39.

I do not quite understand. I share a lot of ground with the Minister, and, in a sense, I think that, when we read Hansard, we will find that our cases are not that divergent. I appreciate everything that the Minister said about redundancies, and 1 appreciate, as I said, that the Government intend or believe that any job losses can happen through natural wastage. We should not get into that in the technical sense of dismissal for redundancy. That is, as the Minister fairly said, an intention. It may or may not happen, and we hope that it does.

We put t he specific phrase, by reason of redundancy or otherwise", into the amendment because, wherever there is loss of employment, it should be negotiated. We do not think that it should be imposed by order. We have a disagreement with the Government there., perhaps, but we would prefer that it be stated—perhaps, in view of what the Minister said. in words different from that of our amendment—that the order should hot extend to the imposition of any changes in conditions that arise if there is a loss of employment.

Of course, I understand when the Minister says that there may be a desire to improve conditions for fire brigade members. I take it that he and I would agree that there would be no difficulty in negotiating that. There would be no need for an order for an improvement. If he wants an amendment that refers to changes in conditions on loss of employment to the detriment of fire brigade members, I would be happy to draft one in that form. We should, perhaps, come back to the matter on Report, as with so many others that we have mentioned this afternoon.

Our other amendment would add what the Minister called a restriction to the Bill, but it would establish in law what he, again, has given us as an intention—I think that that is what he said—on the part of Ministers. He said something along the lines that there were no plans to affect, by way of an order under Clause 1(1)(b), the conditions of service of members of the fire brigade directly or indirectly. He fairly accepted that there might be an order relating to appliances and special equipment that would impinge on conditions of service. There would be no difficulty about that; at the drop of a hat, draftsman could provide him with an order, on the one hand, saying that the appliances must be moved to wherever the Secretary of State says they must be moved to and, on the other hand, ordering a change in the conditions of service to accept that. There is no problem with that, as far as his power is concerned.

The Bill should provide a remedy for anyone in the case—the unintended case, it seems—that an order made under Clause 1(1)(b) directly or indirectly has an impact on conditions of service, which should be dealt with only under Clause 1(1)(a). In the practical, commonsense terms that the Minister is always advancing—not in legal terms—that is a real prospect, if any error is made.

One of the issues between us this afternoon has been whether the Government could possibly be wrong. Our arguments have been advanced on the basis that anyone can be wrong and that the Bill provides for a situation in which an error will have undesirable effects. The description in Clause 2(3) of what property means is an example of that. It should be stated clearly that property does not include contractual rights and duties. If it is not, a court will, whatever circumstances arise, necessarily have to accept that they are included in the term "property", as is the normal case.

I had some authorities, but I dare not cite them because some members of the Committee do not like legal authorities.

Lord Campbell of Alloway

Before the noble Lord sits down—

Lord Wedderburn of Charlton

May I just finish the sentence? There is plenty of authority to show that possessions—in a number of cases—or property include contractual rights and duties. That is all that Amendment No. 39 says. We are clarifying. I hope that the Minister will consider it again before Report.

The noble Lord wishes to ask a question. I am happy for him to do so.

Lord Campbell of Alloway

I am obliged to the noble Lord. Does he remember that I have already conceded—I forget how many days ago; it may have been at Second Reading—that a direction given to the fire authorities under Clause 1(1)(b) would inevitably, in certain circumstances, affect the terms and conditions of work. In order to comply with the requirement, such would be the position. So, there is nothing wrong in that concession. Is not that the correct approach?

Lord Wedderburn of Charlton

I take it that the noble Lord is speaking in favour of Amendment No. 39, which would exclude that possibility. I remember him making some such point in a different context, and 1 am grateful to him for his intervention and his support—if it was support.

I submit that, even to the uninstructed eye, it would seem that, given the meaning of "property" in the Bill, orders made under Clause 1(1)(b) could, even mistakenly, affect conditions of service in the way that the Minister described. It might be better if we made it clear that it should not. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 38 and 39 not moved.]

Baroness Turner of Camden moved Amendment No. 40:

Page 3, line 5, at end insert— (3A) In the Trade Union and Labour Relations (Consolidation) Act 1992 (c. 52) after section 238A there is inserted—


Section 238A shall apply to a member of a fire brigade where he commits an act or is induced to commit an act which by virtue of the Fire Services Act 2003 is not actionable in tort.""

The noble Baroness said: The amendment comes at the issue of the right to strike from a slightly different angle. The Minister has already stated on several occasions that there is no intention to interfere with it, and, of course, I accept what he says. It is dealt with at some length in the White Paper, which refers explicitly to Section 238A of the Trade Union and Labour Relations (Consolidation) Act 1992, as does the amendment.

Section 238A gives protection against dismissal. An employee is regarded as unfairly dismissed if the reason or, if there are more than one, the principal reason is that he took protected—lawful—industrial action; in other words, action for which all the appropriate moves, including balloting and everything else, had been taken.

The White Paper makes it clear that the Government have no plans to remove from employees in the fire and rescue service existing freedoms under the law to take industrial action, although they have said that they will keep the position under close review. As we indicated earlier and as I have said on previous occasions, this is not a popular measure. It has already occasioned a fair amount of disquiet among trade unionists, who wonder why it should have been thought necessary in the light of the recent agreement. I think it would, therefore, be useful if the amendment—or something like it, if the Government do not like its wording—were included in the Bill. It would be helpful to all concerned if the Government are anxious that the Bill should proceed as smoothly as possible, as I am sure that they are. I beg to move.

5.30 p.m.

Lord Campbell of Alloway

There is a gremlin in the amendment, which is contained in the phrase, by virtue of the Fire Services Act 2003 is not actionable in tort". That brings us right back to what we have been discussing for about three hours. Therein lies the gremlin. I would oppose the amendment on the grounds that it imports unmanageable complexity into a situation that at times will be an emergency situation.

Lord Wedderburn of Charlton

I apprehend that the noble Lord is on the wrong amendment. The words, "actionable in tort" do not appear in Amendment No. 40. Amendment No. 4 says that Section 238—

Lord Campbell of Alloway

We are on Amendment No. 40.

The Deputy Chairman of Committees (Lord Tordoff)

I wonder whether the Grand Committee wishes me to read out the words of the amendment, since I only said, "At the end insert the words as printed on the Marshalled List". I perceive that the last sentence of the amendment says, by virtue of the Fire Services Act 2003 is not actionable in tort".

Lord Wedderburn of Charlton

I accept entirely that the words, "actionable in tort" end the sentence. I meant to say that Amendment No. 40 deals with acts that, by virtue of the Fire Services Act 2003 is not actionable in tort". In that respect, it incorporates the argument made on the previous amendment. I apologise if I was understood to say the opposite.

Section 238A protects an employee who takes protected industrial action under the 1992 Act where the reason or—if more than one—the principal reason for his dismissal is that the employee took protected industrial action. It may be that the words of Amendment No. 40 should simply say that—that Section 238A applies here where the objection and reason given for dismissal is some illegality under this legislation. The Minister may want to consider that, rather than using the words on the list.

As anyone will know who has had even remote contact with such a situation, the reason for a dismissal is very often disputed. The principal reason for a dismissal can be a matter of great argument, whether in grievance procedure, disciplinary procedure, employment tribunal or otherwise. Therefore, it would ease some of the concerns to which my noble friend referred in moving the amendment to have it restated—if it were to be drafted in such a way— that acts that are breaches of contract by reason of the Fire Services Bill plainly fall within Section 238A. Those concerns are real and worry a number of people who are involved and who will be affected under the Act.

Lord Rooker

Concerns come from lack of clarity. I can spell out in non-legalistic terms that fire-fighters are covered by Section 238A of the 1992 legislation. I have had a few clashes with parliamentary counsel since I have been a Minister. However, I have been over to the counsel's HQ—the inner sanctum—with some of my colleagues to learn how it works, and came away as a real fan. People in that office always said to me that I should not allow anyone to persuade me to legislate for the same thing twice, because someone somewhere would take one part of what I had done in a way that I did not expect. They told me to legislate for things only on one occasion.

This is a classic case of that issue. I can actually say that the amendment says that Section 238A shall apply to members of the fire brigade. We do not need Section 238B to tell us that the fire brigade is covered by Section 238A. We do not need that—the brigade is covered by the protection under Section 238A.

If an order was made under Clause 1(1)(a) and union members decided that they did not like it, persuaded the union that they wanted industrial action and took a ballot for a protected dispute, they would be fully entitled to do that. Nothing in the Bill would stop them doing it, and we would not seek to stop them doing it, apart from by persuasion. Fire-fighters are covered by Section 238A, whether it is relevant to this Bill or any other Bill or Act. They are covered following the rules set out for Section 238A to operate, so we do not need Amendment No. 40. It would be legislating for the same thing twice.

Lord Wedderburn of Charlton

The Minister has just made a proposition that was more relevant to the previous amendments than to this one. I wish to get clear what he said. I believe he said that if the union induced industrial action—of course, in contemplation or furtherance of a trade dispute—and there was a ballot, there would be complete protection. He is therefore saying that no unlawful means tort could possibly be committed. Is that the proposition? I wish to get it clear so that we can consider the position on Report.

Lord Rooker

I have already said this twice today in response to other amendments. I gave not an example but a point that spells it out in no uncertain terms: if the Secretary of State were to make an order under Clause 1(1)(a) and the union decided to ballot its members on whether to take industrial action in protest at the order, the resulting industrial action would constitute a trade dispute and therefore attract the protection available under the 1992 Act. It cannot be any clearer. They may not like what is in the order. If they want to take action against it, they are protected so long as they follow the rules. I cannot make it any clearer.

Lord Campbell of Alloway

Perhaps, briefly, I may say that I am not in favour of either side on this. I am against the Bill, as your Lordships know. But I understood the noble Lord, Lord Rooker, in the sense that he has described. I think that the noble Lord, Lord Wedderburn, must have misunderstood the true intention of what the noble Lord was saying.

Lord McCarthy

We are going back to an issue that we have been over and over. Perhaps it would help if we took that into account on Report. The fact is that the Minister has quite forcefully said, over and over again—I shall have to go through Hansard to see how many times—what the Government intend. We are not disputing what the Government intend over and over again. We are saying that, unfortunately, there are the courts. The courts might have a case where it was argued before them that the things that have happened were not covered by Section 238A. Because we do not know the circumstances, we do not know precisely what might be said. In this case, as we say in many other cases, for the avoidance of doubt it would be better if it were specifically stated on the face of the Act something that embodies what the Government intend but that does not necessarily always result in what the Government intend coming about in the courts.

Baroness Turner of Camden

I am obliged to the Minister for restating categorically the Government's position on the issues that we have raised today, particularly Amendment No. 40. However, I still have some concerns. I am worried about the overriding authority and the powers that accrue to the Secretary of State in the Bill. On account of that, I was anxious to have it spelt out in the Bill that protections for fire brigade members still exist—even though the Minister says that they are there anyway under existing legislation. We may return to something else, perhaps differently worded, on Report. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 41 not moved.]

Lord Wedderburn of Charlton

moved Amendment No. 42: Page 3, line 27, at end insert — (5A) After section 244(2) of the Trade Union and Labour Relations (Consolidation) Act 1992 (c. 52) there shall be inserted—

(2A) For the avoidance of doubt, subsection (2) applies to any case in which the dispute relates to matters which are the subject of an order made by the Secretary of State under the Fire Services Act 2003 affecting the working conditions of members of a fire brigade." The noble Lord said: In our submission, there is a misunderstanding of the law as it stands. When he was talking on the previous amendment, the Minister posited a case, which we all hope does not happen, where there is an order that the fire-fighters and the union do not like, a strike is induced, there is a proper ballot and all the other proper procedures are followed; for example, the right notice is given and all the right things are referred to in the notices. The Minister said that, obviously, that would be a trade dispute. I would have thought so. However, I am afraid that in dozens of court actions, including the dock strike case and all sorts of others, it is argued that, in parallel situations, precisely where a Minister has exercised his functions—quite properly—under his statutory powers to deal with matters that are in dispute, the dispute is not between employers and workers but between the union and the Minister. That is such a common pleading that anyone who has ever seen anything of a parallel situation will know that it is very often one of the first things to which plaintiffs, solicitors and counsel turn.

The definition of a trade dispute in Section 244 of the 1992 Act begins with very important words: a 'trade dispute' means a dispute between workers and their employer which relates wholly or mainly to one or more of the following". What follows is not relevant, as it is about matters on which common ground would be involved. The definition refers to a dispute between workers and their employer. The allegation is often made in such cases that, in striking against the terms of an order, no matter which of the legal results an order would make—whether it impacts directly and immediately on conditions of service or whether it is a statutory obligation that does not enter the conditions of service—the argument does not go to content; it goes to parties. Unless you have the right parties—I have lost cases on this point—you do not establish your trade dispute and you are out, ballot or no ballot, notice or no notice, quite rightly, as that is what the statute says.

Parliament knew that this was a problem. The Labour government passed a section that survived the destruction of so much in the 1980s. It is now the section to which the amendment refers. Since the section has not been explained, I think I should read it. Section 244(2) of the 1992 Act states: A dispute between a Minister of the Crown and any workers shall, notwithstanding that he is not the employer of those workers, be treated as a dispute between those workers and their employer if the dispute relates to matters which—

  1. (a) have been referred for consideration by a joint body on which, by virtue of provision made by or under any enactment, he is represented, or
  2. (b) cannot be settled without him exercising a power conferred on him by or under an enactment".
I have discussed that section with a number of colleagues. It was generally agreed that it is not wholly clear that a dispute of the kind that the Minister and I are talking about—where the union sees the order, does not like it and supports a strike—would fall within Section 244(2). That is the reason that we have moved the amendment. I do not know whether the provision should have begun with the words, for the avoidance of doubt", but it does. I do not like that phrase. It states that, for the avoidance of doubt, subsection (2) applies in any case in which a dispute relates to matters which are the subject of an order made by the Secretary of State affecting the working conditions of members of the fire brigade.

The reason for the doubt is whether such a dispute would fall within paragraph (a) or (b) of Section 244(2). At the very minimum, there is very serious doubt at the moment as to whether a court would hold that it did. I join with the Minister in saying that such circumstances should be regarded as giving rise to a trade dispute. The reason for the amendment is to make that absolutely clear. I beg to move.

5.45 p.m.

Lord Campbell of Alloway

Very briefly, it does not seem to me that it is really applicable or apposite to use this short Bill, which has a single purpose and is for a short duration, and is applicable in a state of terrorist attack, other emergency or generally and then to say that in the context of the application of this Bill, which is a very unusual type of Bill, we should amend the Trade Union and Labour Relations (Consolidation) Act 1992, which is of general application, quite outside the concepts of a specific single-purpose Bill.

I listened as best I could to the reasons given for the amendment but I am unable to understand them. That may be my fault, but even if I could understand them, it does not seem to me to be appropriate.

Lord McCarthy

We have been asked repeatedly, since I have been a Member of this House, in the course of passing a particular Bill to amend another Bill. I shall not say that it always happens, but if the Bill is of any substance it does happen. It is just not an argument to come along and say that one Bill is amending another Bill. It happens all the time and this is the simplest way in which to do this. This is very mild, and I would suppose that the Government would say—I certainly hope they will—that once again they intend that this shall be the case, and because they intend it to be the case, it will be the case.

Therefore, this is another example of something we shall have to think about carefully when we come back on Report as to how we can somehow merge the Government's intentions into actualities. My noble friend says that he does not like, For the avoidance of doubt". I do. It seems to me that it is very clear that that is what we are trying to do. We are saying that we cannot forecast the future but on the forecast that we can make, we do not want this to happen. I do not see why we cannot accept it now.

Lord Campbell of Alloway

I am grateful to the noble Lord. This is a debate. I wonder what the noble Lord would say. This is not on this occasion a question of the intention of Government on an assurance given by the noble Lord, Lord Rooker. It is a matter of plain construction of the terms of the Bill. As a matter of construction generally, subsection (1)(a) and (1)(b) apply to all the situations to which I referred: a terrorist attack, other emergency and generally. One of the reasons that I oppose it is because it applies to all three. But it is a matter of construction. It is not a question of the intention of the noble Lord. Lord Rooker.

Lord McCarthy

If it is not a matter of intention of the noble Lord, Lord Rooker, I do not know what his defence is. I do not see what it has to do with terrorism and the way in which it is applied. We are saying—I think we are right; we shall see when I sit down—that this is what the Government want to happen, so let us ensure that it does.

Lord Rooker

I suppose that the nub of this, in a way, is the question of whether an argument between the Minister and employees is a trade dispute. That is the nub of the argument. First, I shall show that it is, and secondly, for my clincher, I will even quote a case. But, this is a fair point to raise in the circumstances.

Trade dispute, as defined by Section 244 of the Trade Union and Labour Relations (Consolidation) Act, is a dispute between workers and employers as to terms and conditions. Obviously, in this case the Secretary of State is not the employer of the fire-fighters. That is generally held to be the case. Section 244(2)(b) provides that the term includes a dispute with a Minister of the Crown notwithstanding that the workers are not employed by him where the dispute cannot be settled without him exercising a power under an enactment, because obviously in that case he must become a party to the dispute.

In this case, if the Secretary of State has set a certain level of pay under an order under this Bill, which is then the subject of a dispute, it is arguable that only he can settle the dispute by revoking or changing the order. The employers could reach an alternative pay agreement. Do not forget that they failed to do that.

Everyone ignores that. The mere fact of an order under the Bill means that the employers and the unions have failed, otherwise we would not be operating the Bill in the first place. To get to this stage, they have completely failed and mucked it up. So, in that case, arbitration is available to them in those circumstances. It is only when all that has failed and we have a dispute that this Bill comes into force. That is why we do not want it as a backstop, as I have said repeatedly.

In this case, you could argue that because only he, the Secretary of State, can settle the dispute by revoking or changing the order, if the employers tried to do it, of course in those circumstances they would be going against the order. So, in our view any dispute regarding the terms and conditions imposed by the order under this Bill clearly would be a trade dispute and would fall within the provisions of the 1992 legislation; that is, a dispute between the workers and employees and the Secretary of State, because only he can be involved in changing the order again.

Furthermore, the section would be likely to be given a positive interpretation by the courts. There is certainly one case, The London Borough of Wandsworth v National Association of Schoolmasters [1993] IRLR 344 CA, in which a dispute by workers as to the alleged excessive workloads brought about by orders made under the Education Reform Act 1988, which provided for the national curriculum, was held to be a trade dispute protected by the 1992 Act. So there is a parallel, if you like. Teachers are not employed by the Secretary of State for a start; they are employed by local education authorities, or in most cases, technically, by school governing bodies. But quite clearly the Secretary of State was involved in that and it was held to be a trade dispute. In similar circumstances our view is based on what we understand to be the law plus at least one case. It would be held to be a trade dispute and therefore it is not necessary to accept the amendment.

If we did accept the amendment, it would, frankly, frustrate the purpose of the orders under the Bill. We are not in business to have the Bill frustrated.

Lord McCarthy

Before the noble Lord sits down, I am trying to be clear about what he said. ] shall read it in Hansard tomorrow. I thought he said that the order under the Bill would be invoked only if the parties disagreed. It therefore follows that once the parties agree—I thought I had an amendment down on this and the Government would not accept it, but never mind—the Secretary of State says, "I shall not use my powers. As long as they have agreed, that is all right". That seemed to me to be what the Minister was saying. Did I get it right?

Lord Rooker

I am not going back to read the Hansard of two or three Sittings ago. But at our first Sitting in Grand Committee and, indeed, at Second Reading, we made it abundantly clear that the Bill is a backstop. It is time limited for two years. We do not want to use it. All the relevant arrangements are available in the existing agreement between the Fire Brigades Union and the employers. If there is any dispute in the intervening period, they can use their existing arrangements which include third party arbitration. I remember saying when responding to an amendment that if there was an agreement, generally speaking the Secretary of State would be reluctant to intervene.

The point I am making is that the Bill would be activated only if a disaster arose of another dispute occurring with no sign of being settled in which case the Secretary of State—he has made this absolutely clear and we make no apology for it so there is no surprise in that regard—would impose a settlement as a way of drawing a line under the dispute. He would do so simply because we have learnt lessons from the events of the past 12 months. As I say, the Bill is time limited and will not extend beyond two years. Hopefully, we shall not have to use the legislation but if we did do so, it would he activated only because the existing system had failed.

Lord Campbell of Alloway

With respect, I hope that I may ask the noble Lord a question. He said the Bill would be used only if the parties disagreed. That is not quite what he means. He said it but I do not think that he meant it. What he meant was, if the parties agree with what we want them to do, we shall not use the Bill. But if they do not—

Lord Rooker

Yes, sure.

Lord Campbell of Alloway

But if the parties do not agree with what we want them to do, we shall impose the Bill.

Lord Rooker

That is entirely the case. The noble Lord expressed the matter perfectly. The two parties could have a sweetheart arrangement—it is not unknown between employers and trade unions to have a sweetheart arrangement—and say to the Secretary of State, "By the way, we have agreed; here is the bill".

We would say, "Sorry, we are not paying the—We do not have a blank cheque.

Lord Wedderburn of Charlton


Lord Rooker

My noble friend says "Ah"! There is nothing new in what I am saying. We have discussed the matter before. The parties can reach an agreement. But, as I say, that could be a sweetheart agreement with a bigger bill than we are prepared to pay for. We would not operate the Bill just because they reached an agreement in that sense. That is not what I meant. It is what I said but not what I meant, as the noble Lord, Lord Campbell of Alloway, said. I am not changing the words. But by and large if the parties have an agreement, we would not intervene. However, if they reached an agreement which was absolutely contrary to the financial settlement for the department and went against what had been agreed previously, we would say, "Hang on a minute". As I say, the Bill is intended for use in an emergency situation. I can honestly say that we do not want to operate the Bill. That would mean the present system had failed to settle any disputes or arrangements or the processing of the current agreement.

As I have already said, it would take several months to process the current agreement so that it becomes fully operable. Therefore, we need this as a backstop. I am not saying that there are any blank cheques here. It is not an agreement just because two parties agree that we pay the bill; that is a conspiracy against the public. To that extent, we would not actually foot the bill.

6 p.m.

Lord Wedderburn of Charlton

I am grateful to my noble friend for speaking on the amendment and to the Minister. The amendment has raised all kinds of issues that I had not expected.

The noble Lord, Lord Campbell, says he cannot understand the amendment but that even if he could he would be against it. There are precedents for that in our relationship. He has often said that he could not understand me but that he would be against me even if he could.

I take my stand on Section 244(2) of the Trade Union and Labour Relations (Consolidation) Act and the problem it poses in deciding whether or not this is a trade dispute. On the facts we have posited, which seem to be common ground, the Minister says it would clearly be a trade dispute. I say it would not clearly be a trade dispute. I have not yet talked to a lawyer who knows Section 244(2) who says that it would be clear that it was. I have talked to those who think it may be more likely than I think. The reason they do not think it is clear is that that section of the 1992 Act applies where the Minister is not the employer, but is using a statutory power in an order which the workers and their union do not like, on matters which, have been referred for consideration by a joint body", and so on. It seems to be agreed that that would not apply here, or matters which, cannot be settled without him exercising a power conferred on him by or under an enactment". That does not refer to Government policy—whether, if there has been a settlement, they like the agreement made. A settlement may be on terms regarded by the Government as a conspiracy. The Minister said so. But whether the Government think that it is a good or a bad settlement or a conspiracy is not what Section 244(2) is dealing with.

Obviously, the dispute could be settled. Indeed, on the hypothesis discussed in the past few minutes, it is settled by the parties, but the Government do not like it. Normally, they would hope not to make an order where there has been a settlement, but for reasons I and my noble friend Lord McCarthy could not really understand at the time, they would not accept Amendment No. 9A. I, too, have not read Hansard, but I remember it so clearly because I was astonished by their total rejection of Amendment No. 9A. It said that where there was no dispute or disagreement between the members of the National Joint Council—that is the union and the employers—whether or not they agreed with the proposals of the Secretary of State in his proposals for an order, the Secretary of State should withdraw his proposals and engage in new consultations.

If the Minister says that the Bill applies only in such a crisis situation that there would not be time for new consultations, then we shall return on Report and table amendments that restrict the Bill to those conditions. There is plenty of discussion around at the moment. Why is it that in the Committee we have not heard a word about the draft Civil Contingencies Bill? It has two new definitions of emergencies. I believe that I am right in saying that the Minister was in the department that was primarily concerned with the matter. We have this Bill coming to us, which will scrap the old 1920 Emergency Powers Act, and which will re-legislate on civil defence on all the matters where emergencies are relevant.

The Minister is amused by my reference to the draft Civil Contingencies Bill. Noble Lords are being asked to consult on it before the end of September, while they are on holiday shooting grouse or whatever they do on holiday. After that, it will be put before them. I suspect that noble Lords have not heard of the draft Civil Contingencies Bill. If it is to apply only in emergencies, we shall draw on that debate on Report with gratitude to noble Lords and others who have taken part, and return with amendments to restrict the Bill to the circumstances in which the Minister has suggested it should only apply.

That is all relevant to this issue of trade dispute. It is not obvious within Section 244(2) that a dispute cannot be settled without the Minister exercising his powers. The Minister will want to impose what he wants to be done; that is the whole point of the powers. I am not objecting to that; I am saying that a court would not necessarily accept the argument that this was a dispute between employers and workers within the special meaning of Section 244(2). Until we hear some more pressing reason why that should obviously be so, we shall want to consider what has been said and return to the matter undoubtedly on Report.

I ask the Minister seriously to consider once again a matter which those who are competent to do so have been raising with trade union colleagues in regard to trade disputes on this matter. I ask him to look again very seriously at this aspect and the other aspects of what will remain lawful in trade disputes in common parlance. With that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 43 not moved.]

Clause 2 agreed to.

In the Title:

Lord Campbell of Alloway

moved Amendment No. 44: Line 2, after "brigades" insert "as a means of last resort to avoid disruption of such services by collective action The noble Lord said: I move this amendment to the Long Title which is consequential on Amendment No. 1 on our first day, and, adverting to the extraordinary circumstances in which it is moved, seek leave to withdraw it so that the same substance of this amendment may be moved on Report consequential on amendments to Clause 1 to be tabled to reflect the substance of Amendment No. 1 in Grand Committee.

As far as I am aware, and I speak subject to correction, never in time of peace or war has primary legislation of short-term effect been introduced to enable a government to introduce ad hoc measures against members of a single trade union to enable a government to impose by decree conditions of service to resolve a dispute on their own terms. The exercise of the powers or the threat of the exercise of these powers other than in a state of emergency is wholly unacceptable and the Bill is unworthy of any government.

The exercise of these powers is a matter of construction of the Bill. It is in no way dependent upon the statement of intention as to the circumstances in which they will be used unless such intentions are embodied in the Bill. This is a serious point which has been taken by three Members of the Committee already. It is the point that the noble Lord, Lord Rooker, gives his assurances in good faith, which we accept in good faith. His integrity and good faith are not in question. What is in question is whether those assurances are beside the point on due scrutiny in either House of Parliament. What one has to do is look at the Bill and see what powers it confers. Unless such intentions are embodied in the Bill, they are of no consequence.

Why then, when there is no state of emergency, take this power to exercise such threat and subvert the traditional process of collective bargaining? Why when there is the urgent need to devise some long-term union strategy to avoid disruption of our public services take a sledgehammer to discriminate against members of the fire brigades? Why engender confrontation with the trade union movement upon the support of which our economy is largely dependent?

This amendment has been accepted by the Table as not extending the Long Title, but as affording means of last resort to avoid disruption of these essential services: the retention of collective bargaining and the setting up of a mandatory arbitral tribunal independent of government for the resolution of the fire brigades dispute as the conditions of service as defined by Clause 2 of the Bill. Amendments to that effect are to be tabled on Report.

If the amendments to which I have spoken should not commend themselves to your Lordships on Report, I shall support the Motion of my noble friend Lady Hanham to leave out Clause 1, which could well be supported by noble Lords from all sides of the House and from both sides of the Grand Committee. If however it should be considered, and it could well be so, that comity as between the Houses could require that an opportunity be given to another place for consideration of these amendments to Clause 1 and other amendments, then so be it. These amendments to Clause 1 will to some extent already reflect the sense of another place on the Statement of 20th March which heralded the introduction of the Bill; also the sense of your Lordships' House at Second Reading and, in this context, in Grand Committee.

So in any event, in the event of a terrorist attack or other state of emergency. we can count on every man in the fire brigades to do his duty by the country. On recall of Parliament, there should be appropriate measures that will be taken by statutory instrument on Order in Council.

I hope that that clarifies the position as to my approach to the Bill that will be taken on Report. If my amendments fail, I shall support the amendments of my noble friend Lady Hanham. However, that involves some consideration as to whether comity between the Houses might induce the House to prefer to consider my amendments. I beg to move.

6.15 p.m.

Lord Rooker

There is no answer to that. The noble Lord said that he would not move Amendment No. 44 as it was not needed because Amendment No. 1 had been withdrawn, or the other way round. He has moved Amendment No. 44, but it is not needed because it is consequential on an amendment that was withdrawn several days ago.

Lord Campbell of Alloway

That is not right. I had to withdraw the amendment because we are in Grand Committee.

Lord Rooker


Lord Campbell of Alloway

That is why I had to withdraw it.

The Deputy Chairman of Committees (Lord Brougham and Vaux)

Let us return to the point. A Division has been called in the House.

[The Sitting was suspended for a Division in the House, from 6.15 to 6.25 p.m.]

Lord Campbell of Alloway

I apologise to the Grand Committee; my head got rather cooked in an oven. I got to the stage that I was not able to deal with the merits of the objection of the noble Lord, Lord Rooker. I am not quite sure what it was. If I may. I should like to explain myself so that I may ask for leave to withdraw the amendment.

Those at the Table explained to me that the effect of my amendment to Clause 1(1)(a) meant that I ought to extend the Title. In the ordinary way, I could well have divided on my Amendment No. 1. However, I could not do so in Grand Committee. I therefore sought leave to withdraw Amendment No. 1. So now I am left with Charlie, so to speak, which is the Long Title, at the end of the road. I cannot divide the Grand Committee on it. So may I please have leave to withdraw the amendment so that we can deal with it on Report?

Amendment, by leave, withdrawn.

Lord Lea of Crondall

moved Amendment No. 45: Line 2, at end insert "and for connected purposes The noble Lord said: On tabling Amendment No. 33—which deals with the operation of the 2003 agreement, and which the Minister has accepted—I was informed by the Public Bill Office that it was necessary to table this amendment as a consequential amendment. I had to do so because my Amendment No. 33 was not related to the Title regarding the powers of the Secretary of State and so on but was separate from the powers of the Secretary of State. That is why it was tabled as a new clause.

As the Minister has accepted Amendment No. 33, I was intending simply formally to move Amendment No. 45. However, I should like to know whether parliamentary counsel have advised differently and the amendment is unnecessary. As I said, the Public Bill Office informed me that it was necessary. However, I am very happy to hear advice to the contrary and that there is no possibility that the legislation including Amendment No. 33 could fall short because of any inadequacy in the Long Title. I beg to move.

Lord Rooker

I am advised that there is no need to alter the Bill's Long Title to allow for Amendment No. 33 to be included in the Bill. My noble friend's contribution to this Bill has been enormous. Omitting to alter the Long Title will not put Amendment No. 33 at risk.

Lord Lea of Crondall

I am very glad to have that assurance on the record. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Bill reported with amendments.

The Committee adjourned at twenty-nine minutes past six o'clock.