§ 9.38 p.m.
§ Read a third time.
§ Clause 1 [Powers of the Secretary of State]:
§ Lord Campbell of Alloway moved Amendment No. 1:
Page 1, line 3, at end insert "if requisite in the public interest of immediate implementation in a state of emergency
§ The noble Lord said: My Lords, in speaking to Amendment No. 1, I shall also speak to Amendments Nos. 2 and 5.
§ At the outset, in a state of some frustration and anger, I want to make a moderate protest, so that this situation shall never, I hope, arise again. I have given notice to the noble Lord the Captain of the Gentlemen-at-Arms, to my own Chief Whip and the noble Lord, Lord Roper. It is idle to blame the usual channels because they are not interested in the nature of my protest, which is the entitlement to have a debate with a representative vote on a matter of great social and political interest not so long before the next election. We have been deprived of that. We have been deprived of it by sending this Bill to Grand Committee. We have been deprived of it by having Report stage in the middle of the night with no one here, a man and a dog. We are deprived of it again today.
§ Having given notice of this protest, I hope that it will not happen again. There is nothing that we can do. Here we are, the Government will have their Bill. There is no way we can stop it. There is no one here to stop it. It is the design of the Government, who have said throughout that they would never accept an amendment to this Bill. It is a simple outrage and I protest.
§ Having made my protest, I turn to the merits of the amendments. For what use it is, I simply do not know. Indeed, I have been tempted to say to your Lordships, "I am taking my name off all these amendments and going home in protest", but I was persuaded by the noble Lord the Captain of the Gentlemen-at-Arms not to do so.
§ Amendment No. 5, which is to leave out Clause 1, is the obverse of the coin of rejection of Amendments Nos. 1 and 2. The idea is to save time and repetition and not to pre-empt noble Lords from speaking to each amendment when moved. I have given notice on day three of Report that I shall move Amendment No. 5 if my Amendments Nos. 1 and 2 are rejected. Perhaps your Lordships will accept an apology on behalf of my noble friend Lord Northesk for his absence. He wished to speak but was unable to attend due to personal and private circumstances.639
§ The object of Amendments Nos. 1 and 2 is to confine the exercise of powers of the Secretary of State under Clause 1 to a state of emergency either as defined by Clause 1 or as envisaged by the Secretary of State under Amendment No. 2. That amendment also makes mandatory provision where there is no state of emergency for consultation with fire authorities and local government before directions are given by the Secretary of State. It is respectfully suggested to your Lordships that definition of a state of emergency is appropriate as relevant to the due exercise of ministerial discretion.
§ Amendments Nos. 1 and 2 grasp the nettle of contention which has stalked this Bill on and ever since Second Reading: the imposition of conditions of service by decree at any time under the absolute discretion of the Secretary of State. Notwithstanding the three fretful days in Grand Committee, for which I do not complain against the Government, and on Report, and attendance by six noble Lords in Grand Committee—on a few occasions, eight—and a similar scant attendance on Report, no reasoned argument has ever been deployed on this Bill. Although the point was made at Second Reading, no reasoned argument has ever been deployed in opposition to the substance of these amendments. At all events some common ground would appear to have been found since Second Reading.
§ Not with standing the current dispute as to whether the agreed interim pay increase of 7 per cent subject to not less than 16 per cent with effect from June 2004 should be withheld pending the affirmation of the Audit Commission which no doubt car. be resolved— that is a rather curious dispute—the climate of relevant industrial relations has changed to such an extent as to enable the traditional process of collective bargaining to proceed without resort to imposition of conditions of service by the Secretary of State by statutory instrument. That is clear from the words of the noble Lord, Lord Rooker, on the second day of Report at cols. 1157–1158 and 1165–1166 of Hansard.
§ It is now the intention of Government only to have resort to this Bill with reluctance in a state of emergency in which it is accepted that the firemen would comply with imposed conditions of service by statutory instrument having instant effect—I refer to col. 416 of Hansard of the first day of Report, 10th September—albeit that the briefing paper of the FBU, sent with a letter from Mr Andy Gilchrist of the 16th October, rightly contends that where there is no such state of emergency this Bill—which incidentally bears kinship with policy aspects of the White Paper— is draconian and wholly unacceptable. There is no mention in this Bill of emergency, and no emergency exists today or has done so for some considerable time—such as is defined in Amendment No. 1—that is relevant to the instant requirement of fire and rescue services.
§ The object of these amendments is not to kill the Bill but to amend it to serve only as an immediate standby, as an essential safeguard in an emergency such as a terrorist attack, whether actual or threatened, and to impose conditions of service by decree, as proposed by 640 Amendment No. 2, as is the intention of the Government. The Bill is not concerned with amendment of trade union law or with extant bargaining and conciliation procedures and has no application to any other public service such as the Royal Mail.
§ The circumstances in which this Bill was debated in another place in March of this year are relevant to justify these amendments to Clause 1(1) to which I speak. The amendments define such state of emergency, and proscribe exercise of the powers of the Secretary of State to impose conditions of service by decree on members of fire brigades other than in a state of emergency. When there is no state of emergency, they require consultation with fire authorities before giving directions, to avoid confusion with the Local Government Act. On that matter, my noble friend Lady Hanham shall speak; she has vast experience in such matters and I have none.
§ The circumstances cannot justify provision to impose or threaten to impose conditions of service, at any time by statutory instrument, to draw a line as a "longstop" to any dispute which cannot be challenged. I quote the noble Lord, Lord Rooker, which I seldom do, but that is crucial. He has made that plain throughout, and I agree with his construction of the Bill. That power would act as a longstop on collective bargaining. That is the agreed construction between the noble Lord and myself, summarising an amicable exchange of ideas. It can be found in cols. 1157–58 and 1165-66 of Hansard of day two of our proceedings on Report.
§ When the Bill was introduced, the Government were simply obliged to act in the public interest after the breakdown of negotiations, to safeguard retention of the availability of the fire services. I think and hope that that was common ground; certainly I asserted so in this House. The Bill was intended to serve as a threat to impose such conditions unless and until the FBU returned to the negotiating table.
§ Due to the good offices of a noble Lord from the Government Front Bench who is not present—I hope that I need not identify him, but he is very experienced in such matters—and those of the TUC, the threat under the Bill was effective. Today, it is common ground that there is a satisfactory working relationship with the FBU. As the noble Lord, Lord Rooker, has said, timetables for the implementation of agreements have been agreed. The ghost of the withdrawal of services at all events in an emergency has been laid.
§ Since the introduction of the Bill, circumstances have totally changed, and resort to statutory instrument is no longer requisite or acceptable. The Government now intend to resort to the Bill with reluctance and only in an emergency. There being no reference to emergency in the Bill—unless it is amended in some way—as proposed it is otiose, as the original intention no longer exists. It is now common ground that the Secretary of State should exercise power to govern by statutory instrument only in an emergency situation.641
§ The drafting of Clause 1(1), which enabled operation of the Bill when there was no state of emergency, opened the door to a series of amendments tabled by noble Lords on the Back Benches opposite. The first of these amendments, spoken to on the first day of Report, was to insert before Clause 1 a clause to limit the Bill to defined emergency situations in which the remit of the exercise of discretion of the Secretary of State is also defined. On this, we make common cause on a matter of principle which is consistent with the amendments to which I speak, notwithstanding other forms of definition in procedure.
§ It is not relevant to this debate to entertain reservations about other amendments in the series as recorded already in the Official Report. We are concerned with principle which, if it should commend itself, would be subject to drafting amendments introduced by another place, no doubt acceptable to your Lordships. Indeed, it would appear from the Official Report of 20th March of another place, heralding the introduction of this Bill, read with care, and on the passage of this Bill, that another place would wish to consider for the very first time this question of principle.
§ Assuredly, this is no exercise in confrontation. According to the report of the Joint Committee on Human Rights, in Paper 118, there is a significant risk of violation of Article 6 of the European Social Charter and Article 8 of the ILO Convention No. 151 if the Bill were to remain as drafted. If these amendments were to commend themselves, this risk of violation would be removed.
§ These amendments affirm excellent bargaining and conciliation procedures, save in a state of emergency in which they could not possibly apply. If not amended either by Amendment No. 1 or Amendment No. 2, the Bill would be harmful, divisive and wholly unacceptable. It would serve as an unprecedented threat against the freedom of the traditional process of collective bargaining. It would provoke a wider divisive effect on industrial relations in the public services. Is it not apparent from the FBU brief that it would invoke further disruptions of the fire services?
§ If these amendments were not to commend themselves to your Lordships, is not the Motion to leave out Clause 1 justified in any event? I beg to move.
§ Baroness Hanham
My Lords, I have put my name to Amendment No. 5 and I want to speak to that now. Throughout the passage of the Bill, my noble friend Lord Campbell has been assiduous in seeking to help the Government to amend it to limit its use to a time of a state of emergency. As he has pointed out clearly today, that situation does not pertain at present. The amendments he has tabled today properly draw attention to the fact that the Deputy Prime Minister is not the only player in this scenario; that the local authorities and the fire authorities, as those with the mandate to pick up any result of his actions, have a right to be involved in any decision made or forced upon the workforce for which they have prime 642 responsibility. They must be involved, for it is council tax payers who largely foot the Bill for the fire service and it is their elected representatives who sit on the fire authorities.
It is, of course, an absurdity that my noble friend should have to attempt to define and limit the Bill in this way, but no other attempt has been made to do so. As the Minister made clear, the legislation is being introduced for one purpose and one purpose only: to give the Secretary of State power to bring an end to the dispute which erupted earlier this year.
Brought in as a hastily constructed measure, the Bill has ground its weary way through the long, hot days of summer and through the colourful days of autumn to tonight with extensive debate from the Opposition parties—I beg noble Lords' pardon—not from the Opposition parties (I had better get the punch line right) which early on declared their concerns about, and opposition to, the Bill and thought that the debate would come thus swiftly to an end. That extensive debate came from three noble Lords on the Government's own side, who, between them, maintained the impetus of dissent for months. Truly, this has been a surreal experience.
It has always been hard to see how the Bill would be effective. Nothing within it would prevent an antagonistic workforce refusing to accept the Secretary of State's legal attempt to enforce a financial settlement; nothing would stop them all coming out on strike again against his determination; no attempt has been made to introduce a no-strike directive for the fire service, which might at least have enabled the legislation to have teeth; and nothing indicates how, even if required by law to do so, equipment would be handed over in a future strike. That would then mean the courts having to be invoked, which could of course have been done at the initial stages of the strike if the Attorney-General had used the powers available to him.
§ 10 p.m.
§ Baroness Hanham
My Lords, the power of injunction, which he could have used. Nothing in the Bill explains the type of situation which might prompt use of this legislation, except that the Deputy Prime Minister was miffed at being unable single-handedly to bring to an end an ill-timed—in terms of the Iraq war—and serious dispute. Indeed, if this legislation had been in place at an early stage in the dispute, it is doubtful whether it would have had any effect at all.
My noble friend Lord Campbell of Alloway alluded to a very strange situation. Clause 119 of the Local Government Bill has repealed Section 19 of the Fire Services Act and handed those powers to the local authority. I thought that that clause might have been delayed in its implementation. I understand that it has not and that it has been implemented. Therefore, the Deputy Prime Minister has passed over to the local authorities the powers determining the number of fire-fighters and the closure of fire stations. However, under the legislation before us today, those are both matters 643 which the Deputy Prime Minister would reserve for himself to decide. We cannot have it both ways. Someone must be in charge of this matter and someone must have the final say. But, as things stand at present, half the powers are with the local authority and, if this legislation goes through, half will be with the Deputy Prime Minister. That seems to me to be a great inconsistency and a huge muddle.
It is my intention to support the amendments of my noble friend Lord Campbell if only to amend this legislation if it cannot be stopped. I would rather have the insurance policy of my noble friend's amendments than nothing at all. But, notwithstanding whether he presses his Amendments Nos. 1 and 2 to a vote and the outcome of that vote, at the appropriate time I or he will move Amendment No. 5 seeking to leave out Clause 1.
This debate would probably have had more effect if it had taken place when the House was full or when we could have been assured that the House was full. But, as my noble friend Lord Campbell of Alloway pointed out, we have had no opportunities at all during the course of the Bill to call a Division. The hours have almost never been appropriate and when they were we were in Grand Committee. We have not had an opportunity to bring amendments forward on which there could be votes. The rest of the time has been taken up with amendments that we could not possibly have supported and to which we did not feel it was appropriate to speak. Therefore, I make it clear that on this side of the House we do not support the Bill and we shall seek to remove Clause 1.
§ Baroness Hamwee
My Lords, this morning I heard the Deputy Prime Minister on the radio say—I wrote it down immediately—There is a crisis; you have to talk it through; that is what you do in these cases".He was talking about a current industrial dispute. I am sure that we would all agree with that but I would not have gone on to the heavy-handed approach of this Bill. I do not want to take the time of the House by repeating the points made by the noble Baroness, Lady Hanham, and by the noble Lord, Lord Campbell of Alloway.
During the course of the Bill the Government have created an unlikely alliance. It is a puzzle to me that they have so set their face against including in the Bill matters that they have acknowledged apply. The more that they have resisted those inclusions, the more important the proponents of those points regard them. On these Benches not only have we always had a distaste for the Bill but we have also opposed it. If it does not disappear, we feel that tonight the Government should agree that the Bill states what the Government say the wording means.
I have not been involved in the negotiations that are continuing so perhaps it is not for me to suggest how to negotiate. However, the Government have not been the major party to those negotiations either, so I feel free to comment on their approach to the psychology of negotiation. Those on these Benches who are left will 644 support the first two amendments should they be put. My name is to Amendment No. 5 that Clause 1 do not stand part and our votes will be where my name is.
§ Baroness Turner of Camden
My Lords, I commend the noble Lord, Lord Campbell of Alloway, for his opposition to the Bill. I do not like the Bill any more than he does, but we gave an undertaking—I believe it was the right undertaking to give—that we would not attempt to wreck the Bill. Taking the amendments as a group, they leave out Clause 1, and they seem to us to be wrecking amendments. The amendments would take out a major clause in the Bill from which everything else follows. In those circumstances I do not believe that we could support it.
Throughout the discussions on the Bill we have attempted to introduce a series of amendments designed to protect the rights of employees in the Fire Service that we thought were under threat under certain provisions of the Bill. We have tried very hard to do that, but so far we have not managed to get any acceptance of that point of view from our Front Bench. We have other amendments before the House on similar lines and I invite the noble Lord, Lord Campbell, to support them. They do not have the effect of wrecking the Bill which, as we have been told repeatedly, has been endorsed by the other place and, therefore, it is not right to attempt to wreck the Bill entirely. The amendments in the name of the noble Lord, Lord Campbell, would have the effect of wrecking the Bill if taken together.
On a number of occasions, as the noble Lord, Lord Campbell, rightly said, we sought to introduce the element of emergency, but we took great pains to define what we meant by emergency and to state the circumstances in which we believe an emergency would apply. I regret to say that those amendments were not accepted by our Front Bench. There is no attempt to define "emergency" in the amendments before the House this evening. I think that in that respect the amendments anyhow are flawed. So, unfortunately, despite the fact that I commend the noble Lord, Lord Campbell of Alloway, for his commitment to the whole idea of collective bargaining and to trade union rights, I nevertheless feel that I am not able to support the amendments.
§ The Minister of State, Office of the Deputy Prime Minister (Lord Rooker)
My Lords, I agree and pay tribute to the consistency of the noble Lord, Lord Campbell of Alloway. From day one he has raised this central issue. I feel as though I have answered it on more than one occasion. I shall do so substantively again tonight. Certainly, the noble Lord has followed a dogged path on the issue of tying the Bill to a state of emergency. But, as I have explained before and as I hope to explain now, basically that would negate the purpose for which we have the Bill and stop it being used. I suspect that that is probably the intention anyway. My noble friend Lady Turner said that they do not want to wreck the Bill, but certainly they do not want it. Therefore, one must look at the issue in that context.
645 I shall deal with Amendments Nos. 1, 2 and 5 in this group. Amendment No. 1 would restrict the use of the powers in the Fire Services Bill to a state of emergency. I accept that, as the noble Lord, Lord Campbell, said, the issue was debated both in Grand Committee and on Report. Therefore, I do not have much to say that is new. To restrict the powers to a state of emergency would in effect prevent them from being used in the manner in which they were intended. I shall give examples as I go.
I have repeatedly made clear that the Bill has been introduced to deal with a specific set of circumstances; that is, the Fire Services pay dispute and the ongoing negotiations. These are at a delicate stage. However, if the negotiations were to fail—and we hope they do not—that would not constitute a state of emergency, as currently defined in legislation or as currently understood.
If the fire-fighters were to call for further strikes, that too would not be seen as a state of emergency. If there was a large fire while the firefighters were on strike, it would be an emergency situation but it would not constitute a state of emergency.
During the firefighters strikes the Attorney-General did not see fit to declare a state of emergency. For the avoidance of any doubt, I have had no discussions whatever with the Attorney-General on this matter. So, if we restrict the powers of the Bill to a state of emergency, we would not be able to use them to direct the fire and rescue authorities to allow emergency fire cover—for example, the military—access to their equipment. That could put people's lives in danger and put property at risk, which we are not prepared to do.
I accept that the noble Lord tabled Amendment No. 2 to complement Amendment No. 1 on the implementation of orders which were made when there was not a state of emergency. That would seek to draw a distinction between making an order in a state of emergency when any requirement to consult would be inappropriate, and making an order when there was no such state of emergency.
However, I have been advised—I realise that me being advised is nonsense to certain Members; and they can cough all they like, but that is a fact—that if Amendment No. 1 restricts the right to make orders in Clause l(l)(a) and (b) to cases of a state of emergency there is no power to make orders outside a state of emergency. I make that absolutely clear. Therefore, Amendment No. 2 could not work. In any case, if Amendment No. 2 were taken on its own, ignoring the potential effect of Amendment No. 1, it only adds to the consultation provisions already in the Bill in Clause 1(3) and (4). We believe these are proportionate and right in the circumstances, allowing relevant bodies to comment but not to impede the proper use of the powers in the Bill.
I think it is generally accepted that Amendment No. 5 removes not just Clause 1 but the Bill. Clause 1 is the Bill. We can argue the toss about this—I know that we added a clause in Committee—but Clause 1 is the Bill, so removing it is the end of the Bill. Put 646 politely, that amendment would wreck the Bill; it would be meaningless. I do not think that I must rehearse the arguments why we would oppose that.
I repeat: if the provision were tied purely to a state of emergency, as the amendments are drafted, the powers could not be used outside a state of emergency. As I said, Amendment No. 2 could not work and, in any case, only adds to the consultation requirements that are already in the Bill. That is not a criticism of the noble Lord, Lord Campbell of Alloway, but it is clear in the Bill that there are requirements on the Secretary of State to consult. So that is not an issue. Let us consult but not allow the operation to be impeded. That means that we must listen and take account of the consultation; we cannot operate on a hunch.
With all that in mind—and knowing the deeply professional manner in which the noble Lord, Lord Campbell of Alloway, has dealt with the Bill from day one, being wholly consistent in his approach—and given the drafting of the amendments, I sincerely request him not to press them. Obviously, it is up to him what he does, but if he were to do so, I should advise my noble friends to oppose them.
§ 10.15 p.m.
§ Lord Wedderburn of Charlton
My Lords, before my noble friend sits down—I am sorry to have had a cough in the middle of his speech, but I understood that that was allowed in your Lordships' House—does he agree with the Deputy Prime Minister's statement on this morning's "Today" programme on the BBC that the negotiations that he mentioned, being in a delicate state, are not a crisis and are not likely to be a crisis, but have just hit a little local difficulty?
§ Lord Rooker
My Lords, let us get this absolutely clear: I shall say this once and only once to my noble friend and anyone else. Many years ago I joined the course on industrial relations and labour law at Warwick University under the tutelage of Allan Flanders and Hugh Clegg two days after I had been selected as a parliamentary candidate. They discovered that and said, "We hope you are not going to Parliament to try to solve industrial relations disputes on the Floor of the House of Commons". It can be taken as axiomatic that I am not discussing anything relating to current negotiations on the Floor of this House now or later.
§ Lord Campbell of Alloway
My Lords, I heartily endorse what has just been said. I have never discussed the merits of any industrial dispute on the Floor of the House. Having listened to what has been said today, one must be realistic. One must realise the hour—the time—and the likelihood of any Division taking a successful route in view of what has been said tonight. I have no support. It would therefore be ridiculous and a waste of your Lordships' time for me to do other than to ask leave to withdraw the amendment.
However, as the noble Lord, Lord Rooker, said, I do not like the Bill. I opposed it at Second Reading as unamendable. I sought to amend it because when I came here I was taught if possible not to oppose a 647 government Bill but to seek to amend it. I have failed. I fear that I shall move Amendment No. 5 to oppose it. If I go down, I go down. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 2 not moved.]
§ Lord Wedderburn of Charlton moved Amendment No. 3:
Page 2, line 24, at end insert—
(7B) In subsection (7A) "an act" includes a deliberate failure to act.
§ The noble Lord said: My Lords, it is the fate of this Bill, with its sunset clause, always to come on in your Lordships' House well after sunset. The amateurish and deliberate arrangement of business tonight has meant that this poorly attended but excited House must consider the rights of 50,000 workers as the hour goes on, from 10 o'clock until whenever we end. I have great sympathy with the point made by the noble Lord, Lord Campbell of Alloway, that whoever is responsible for this and wherever they are—we call them "the usual channels"—will understand that they have made this House a laughing stock. That is especially so when they react in such a bellicose manner to any cough or a hesitation by anyone around the House to believe that they could not possibly be wrong. I refer to the arrogance of the Government in their presentation of the Bill. I have never said that about Ministers in the past, as most are neither arrogant nor bellicose. This Bill has been made an exception.
§ In the light of the new developments that have occurred since Report, it is necessary that I move the amendment, without any repetition in detail of what has gone before on the Bill, in a proper manner. I shall come to the new developments later.
§ I appreciate that it is a very good principle not to try to comment on the details of ongoing industrial negotiations. Indeed, I was teaching the subject when the noble Lord, who referred to other experts on the subject, was in his student days. However, those who refer in justification of their position to the delicate state of negotiations have no locus standi to rave about the inability to say anything further. When the Secretary of State makes a considered statement on the radio, I take it very seriously.
§ We wonder why the authorities brought the Bill forward by a week to be debated tonight. With those remarks, I beg to move Amendment No. 3. I still hope that it will be acceptable to the Government, as it 648 stands for the avoidance of a doubt that we have established. If it were accepted, we would not move Amendment No. 4. This is the last moment when the right to strike of fire-fighters can be dealt with by this House and preserved by clear words in the Bill to cure the manifest doubt that has arisen in the mind of everybody other than the Government and their advisers—to whom I shall come—who has considered the law on the subject.
§ The Government must discharge the burden of proof that there is no doubt whatever. The reason for that is very clear: if you apply to the High Court and prove an arguable case, the doubt operates against the defendant. An arguable case is enough to secure a labour injunction.
§ There is no doubt about the Official Opposition's position. I do not blame the noble Baroness for making it clear that they are in the process of working out their policies. She made it clear on Report and in Grand Committee that the Opposition's policy is to take away from fire-fighters the right to strike, or, as I put it in a previous debate, that fire-fighters should be militarised.
Our Government say that that is not their intention, and we have never challenged that statement. Our challenge has been that their Bill leaves that intention in doubt on the statute book. Indeed, it is in tatters, because the Bill does not effectuate that intention. It will not be difficult for those who object to industrial action to obtain injunctions from the courts, because the burden that they have to discharge is to present an arguable case—after the decision in your Lordships Appellate Committee in American Cyanamid v Ethicon  AC 396. Lord Diplock made that perfectly clear:
The claimants must show … a serious issue to be tried",
§ and then the court will consider the balance of convenience.
§ If we did not take this opportunity, my noble friends and I who tabled this amendment would not uphold the integrity of our arguments in previous debates in which we have been quite consistent on this matter. We have pressed the Government at all stages of this unhappy Bill that we must have clarity on the face of the Bill—not merely in terms of the intentions of Ministers, but in the law that we are making, that the normal rules of industrial action apply to firefighters. For the Armed Forces and the police, international law under the ILO conventions, the European Social Charter and sundry other instruments permit an abrogation. That law does not permit the abrogation of the rights of firefighters unless we militarise them, which has been done in some European countries.
§ Reasonable persons outside this House are asking, "Why is there any doubt? Why not cure it by some simple words, if that is what you intend?". I say clearly to noble Lords that it is now well known—indeed, it has been in the press and I vouch for this—that the TUC has joined in asking for an amendment from the Government to remove the possible threat to the right to strike in this Bill. What will the Government say to the TUC?649
§ It is all very simple, even at this stage of a darkening night. Persons with an arguable case who suffer damage can obtain injunctions against industrial action unless it is protected. Even if there has been a ballot or a trade dispute, if it falls outside protection, they can get the injunction. The essential point is this— and I will say this very slowly—a breach induced by union action with a ballot in the trade dispute is a breach of a contractual duty, including one created by the Bill or an order under the Bill and the right to strike is retained. If the union—with a ballot in a trade dispute—induces a breach of statutory duty, such as imposed by an order under this Bill, the right to strike is not protected. Of course, in a particular case when an injunction is issued on balance of convenience, that has to be taken into account, but that is the essential crux of the case. Everybody seems to have understood that except the Government. Indeed, after certain articles in the Guardian, I understand that they talk of little else in Barnsley than that essential distinction. It is known to workers and to firefighters, and if the Government want to throw the embers of a bomb into negotiations, they will pass this Bill without amendment. Everybody knows that it is a possible legal threat. Everybody knows that it can be cured by 50 words. Why not accept that?
This is not my law: this is the law pronounced in the Court of Appeal judgment in the case of Meade v Haringey Council . Noble Lords who have followed the debates will have seen the case discussed at previous stages. They will know that, in that case, a local authority closed schools, in breach of its statutory duties, at the demand of a union in an industrial dispute about wages. On the position of the union, Lord Justice Eveleigh said, at page 508 of the Industrial Cases Reports, that the union,
may, in proper circumstances, induce others to break a contract in furtherance of a trade dispute, but they are not entitled with impunity to order or solicit a breach of statutory duty".
On page 505, Lord Denning also gave that as his view. He said that the law gave the union,
immunity if they induce a person to break a contract. It gives them no immunity if they induce a local authority to break a statutory duty".
§ He went on to say that to do so, in agreement with the union, would involve "an actionable conspiracy".
§ I said that there had been new developments. Your Lordships should know of them; indeed, we should have had a full debate on them. There has been a remarkable development. On Friday afternoon, in the middle of the postal strike, I was sent a fax by my right honourable friend Nick Raynsford, who had invited me and my noble friends Lord McCarthy and Lady Turner of Camden to a meeting that was somewhat frustrating, as we did not get near the central point of the problem. He sent me a fax of 10 pages of legal advice. We had been asking for it for four months. Since June, we have asked for a reasoned legal case showing what was wrong with saying, "Meade's case applies. It's Court of Appeal. Why can't you say that that doesn't operate here?"650
§ I read the 10 pages. They were new, and I thought that they would be placed in the Library. I was told that it would be sent to a wider audience and would, therefore, say things that I knew about but which had to be explained to a wider audience. Perhaps, some noble Lords have had it. I thought, "I had better get down to this", and, to my wife's consternation, I spent most of the weekend trying to see what I thought of it and putting it down on paper. I have placed a copy in the Library. I almost feel like saying what my former right honourable friend Michael Foot once said in the middle of a debate in which he referred to a document: "Hands up who has read it. Hands up who thinks there's something wrong with it. If so, what is it?"
§ I found that the note of legal argument was defective. I could give your Lordships 11 examples of its defective legal character. I am sorry to say that. Something about legal advice seemed to bother the Minister; I am not sure what it was. I shall give one example from the 11 cases of legal error. I do not usually say this. In an academic article, I would be much kinder; I would say that it was possible to disagree and give the reasons. But then, an academic readership would read it carefully.
§ I must speak bluntly. I shall take one example: the note tells Ministers that they need take little heed of the Meade judgment in 1979. The first reason that it gives is that only Lord Denning expressed the point of view that I cited. Those who prepared the note could not even read on three pages and see that Lord Justice Eveleigh agreed and that other judges had supported it anyway. So, that is wrong. It then says that Lord Denning had expressed it—if I dare repeat their legal Latin in the presence of the Minister—as an obiter dictum, meaning that it was just a throwaway remark. But it was central to his reasoning. Thirdly, it says that the finding was criticised by a Law Lord in 1995. It was not. The passage in the judgment of 1995 to which it refers—I am happy to read it out, if your Lordships want it—was a criticism of a different passage, not of that passage.
§ If that is the legal basis on which Ministers are going to say, "We don't have to bother with Meade's case. We don't have to bother with the distinction between inducing a breach of contract and inducing a breach of statutory duty", your Lordships are entitled as a legislature to look at the matter de novo and ask what is going on. In all fairness, I ask any noble Lord who is going to rely on the legal memorandum sent by my right honourable friend Mr Raynsford to look before doing so at my memorandum in the Library and not vote before comparing the two.
All we are seeking is a clear statement in the Bill— there is no such statement at present—saying that it does what Ministers say they want to do. For example, if a ministerial order under Clause 1(1)(A), which states,
modify the conditions of service",
§ was interpreted as modification of a contractual term—industrial action—opposing that change in response to such an order would be protected. But the Bill does not state that such an order operates in that 651 way. If Ministers wish me to summarise, I would be happy to read out passages from previous debates. I know that some noble Lords cannot bear the length of argument on the matter, but this is dealing with the rights of workers.
§ Baroness Gibson of Market Rasen
My Lords, perhaps my noble friend would give way. It is not that we do not want to hear the arguments, but some of them go over our heads. That is why I was shaking my head.
§ Lord Wedderburn of Charlton
My Lords, I shall try to make the arguments clearer. I deeply apologise to my noble friend that she does not understand. Perhaps I may try to explain again. Let us suppose that the Bill allows the Secretary of State to make an order imposing contractual terms of employment and that the firefighters say, "We're not going to have it". My noble friend Lady Gibson and I know how that can happen. They may say, "We're going to ask our union to back us"—backing which the postal workers failed to obtain at some points—and the union may say, "Yes, we'll have a ballot" and on that they take action. If that is inducing workers to break their contracts because of the way the order applies, that is protected as a trade dispute. But if the order applies a duty directly from the statute without going through the contract of employment, that is not protected. It is as simple as that. I do not know how to make it any simpler, but if the noble Baroness wishes me to 1 shall try.
§ Lord Wedderburn of Charlton
My Lords, perhaps I may just complete the sentence. We want the Government to make clear that no statutory duty arising from such an order displaces the normal protections of trade union law. I give way to the noble Lord.
§ Lord Campbell of Alloway
My Lords, I shall be very brief. I think that the noble Baroness shares the same difficulty with me. I did not quite understand what the noble Lord was saying. Surely, it depends on how one looks at the matter—from which end of the telescope. The amendment states,shall not be actionable in tort on the ground only—(a) that it constitutes a contravention of, or non-compliance with, a statutory duty imposed by an order made under this Act".But, on looking at it the other way around, which I do and I think the noble Baroness does, if one has contravention or non-compliance with a statutory duty imposed, it is unlawful. The difficulty is that it is not, as the noble Lord said, quite as simple as that.
§ Lord Wedderburn of Charlton
My Lords, the noble Lord has made my next point very well. If there were no trade union legislation, inducing a breach of contract would be unlawful and thus all strikes would be unlawful. We say that that should apply here. Let us not make new illegalities—rightly pointed out by the 652 noble Lord opposite—arise from the Bill by imposing statutory duties. Inducing such duties prohibits the right to strike.
The same is true under Clause 1(1)(b). It is important that noble Lords should understand this. Let us take the case where an order made under Clause 1 (1)(b) gives directions for the fire stations in rural area A to be closed and all the equipment moved to another area. Perhaps I may summarise the view of my noble friend Lord Rooker in debates in Grand Committee and on Report. He accepted that, although the main thrust of the direction was the disposal or use of property in a transfer from one place to another, it would incidentally affect the working conditions of the firemen. Nothing can affect working conditions more than having the place of work moved away; anyone knows that. Therefore a statutory duty under Clause 1(9) imposed by the Bill on a fire authority to carry out the order would impose that statutory duty. If the operation of such an order were opposed by the firefighters, on a ballot in a trade dispute, who then took industrial action on the matter, that action would be illegal. At the moment, industrial action taken against the closure of a station is lawful.
§ The Earl of Onslow
My Lords, would the noble Lord be kind enough to give way? Two or three days ago, the Government Front Bench complained that my noble friend Lord Mancroft went on for 29 minutes in Committee on the Hunting Bill. It was said that that was too long. The noble Lord, Lord Hoyle, is nodding his head in agreement. Surely 22 minutes on an amendment at Third Reading of a Bill is, with respect, a gross abuse of the procedures of this House.
Is this a private fight or can anyone join in? However, while I do not normally come to the rescue of the present Government, on this occasion it appears that the noble Lord has been banging on for far too long.
§ Lord Wedderburn of Charlton
My Lords, perhaps the noble Earl would like to listen and appreciate that the rights of firefighters are a matter of intense concern to some. When we reach the last stage of legislation and it is based on legal error, you have an obligation to say something. It may not be within the noble Earl's ancestral conventions, but with the greatest respect, some of us feel that a legislature is for making good law. I want the Government to save the normal industrial rights of firefighters.
I come to my last point. This marks a parallel with 1906 when, by an amendment moved by Sir Charles Dilke, the protection for inducing breach of contract in trade disputes was put into the Bill of the great Liberal government of the day. I hope that those who sit on the Benches which claim descent from that government will do the right thing in remembering that tonight.
This is a matter of human rights. It may amuse people to think that human rights include trade union rights; it may bore some people to think that human rights include trade union rights, but it does not bore most of the workers outside this House. If we want the 653 procedures of this House to contribute to their abolition, noble Lords will smile, visit the bar and then troop through the Lobbies on a matter as important as this.
It is a matter of conscience and not, I think, a party matter. I genuinely put forward that view. Many parties have voted for industrial rights and the Lords of England who are now abed or in the bar will think themselves accursed that they are not here to listen to the reasoning on this matter, because this day will be remembered as the day when Parliament, at the last gasp of this Bill, deprived a group of honourable workers—the last dispute showed that; I am not concerned with the union's position—of their liberties. This group of workers does not deserve to have its liberties infringed by a Bill that does not encapsulate clearly, on its face, Ministers' subjective intentions.
Ministers' subjective intentions are not what are interpreted by the courts. The courts interpret what is on the face of an enactment. All we are asking is that the Government come up to scratch in respect of their own intention and accept an amendment of the kind we are suggesting to put the Bill into a proper state. I beg to move.
§ 10.45 p.m.
§ Lord Davies of Coity
My Lords, I have not participated in the debate during the passage of the Bill and I was certainly very critical of the dispute that provoked its introduction. But I have a real and deep-rooted concern about one element of the Bill. My experience in the field of industrial relations is not academic and it certainly is not legal, but it goes back to 1963, some 40 years ago. I know all about In Place of Strife, Ted Heath's Industrial Relations Act 1971 and the draconian legislation introduced under Margaret Thatcher.
I am not interested in the legalities, in the technicalities or in an academic argument. I am interested in safeguarding the interests of working people. That is precisely the position from which I am arguing. If workers decide to go on strike, they take industrial action which is legally permissible by way of an industrial ballot. Although they breach their contract of employment, they are protected under the legislation. However, my understanding is that if a statutory instrument, a regulation, is introduced, they will not necessarily have the same safeguards as those who breach their contracts of employment.
If my noble friend the Minister can assure me that, under the terms of the Bill as proposed by the Government, that protection is copper bottomed and there is no possibility whatever of a statutory instrument being introduced which jeopardises their employment rights and safeguards against dismissal, I will support him. But the assurance has to be copper bottomed. I do not want to be left in a situation where it is not likely to happen; it may never come; the Titanic will not sink. We do not need to put enough lifeboats on the ship because that will never happen. But the Titanic did sink, and I do not want to be in a 654 situation whereby that possibility is likely to occur even though it probably will not occur. If my noble friend the Minister can assure me of that, I will support him. If he cannot, I shall support the amendment.
§ Lord Campbell of Alloway
My Lords, how can the proposal be copper bottomed? If there is an actual or threatened terrorist attack you have to have immediate directions, with instant effect, which cannot be challenged and which are not part of ordinary trade union law. We are talking about a statutory instrument direction. You cannot copper bottom that and say it does not exist because there is another law. That is nonsense.
§ Lord Davies of Coity
My Lords, my clear understanding is that the movers of the amendment believe that the Government cannot produce a guarantee of protection for workers if a statutory instrument is introduced. That is why the amendment has been tabled. If the amendment will provide a belt and braces situation, I am bound to support it.
§ Baroness Turner of Camden
My Lords, I support the amendment moved by my noble friend. We are now at Third Reading; we have put down amendments at every stage of the Bill through the House. It is clear that we do not like the Bill, but we have always accepted that since it had been approved by the Commons, we should not attempt to wreck it, and we have not tried to do so. We have sought, by amendment, to improve it, and to protect the hard-won rights of the trade unionists to whom it applies. I say to my noble friend Lord Davies that that is what this amendment is all about.
We have accepted the statements made on behalf of the Government by my noble friends that the Bill is to be of short duration, that it is to be used in emergencies only and that there is no intention to interfere in any way with the trade union rights currently enjoyed under existing legislation and provided for in ILO conventions. Our problem throughout our discussions has been that the good intentions are not contained in the Bill itself. It gives the Secretary of State absolutely overriding powers to do virtually what he likes so far as terms and conditions of fire service employees are concerned. The key clause is Clause 1, under which the Secretary of State may, by order—may, by statutory instrument—fix or modify the conditions of service of fire brigade members.
As has repeatedly been said by my noble friend Lord Wedderburn, the point about an order made by statutory instrument is important. We did not support the amendment in the name of the noble Lord, Lord Campbell of Alloway, since it involved leaving out Clause 1, which is the key clause. However, despite the Government's repeated assurance that the powers are required only for use in an emergency, this is not stated in the Bill and, as it stands, it is open to the Secretary of State to use the powers as he thinks fit.
Our attempts to define circumstances in which the powers could be used have been rejected by the Government. However, we have repeatedly been told 655 by my noble friends on the Front Bench that it is absolutely not the intention to use the powers to interfere with the right, already contained in existing legislation, collectively to withdraw labour. The right to strike, we have been told, is not at risk in the Bill. Under the 1992 Act, a trade union following the provisions set out regarding balloting of members, and so on, secures immunity from legal action if it calls an industrial dispute involving the withdrawal of labour if it follows correctly all the procedures set out in the legislation. However, as we have repeatedly pointed out at various stages in the Bill's proceedings, the Secretary of State may make an order, if this Bill becomes law, and he does so by means of a statutory instrument. In other words, a statutory duty is then imposed on fire service employees.
We have consistently explained that industrial action in breach of a statutory requirement does not have protection. It thus seems to us that despite the Government's good intention, the right to withdraw labour is, in fact, under threat.
At various stages in the Bill's proceedings, and again this evening, my noble friend Lord Wedderburn has drawn attention to a number of cases in which it has been held that the breach of a statutory duty is quite different from a breach of contract of employment. In the latter case there is protection; in the former there is not. This is an important issue, not only for the Fire Brigades Union, with whom we have been in contact, but with other unions generally. I understand that the TUC has recently expressed concern about it and believes that the Bill should be amended to make sure that the Government's intentions are clearer in the Bill. That is what our amendment seeks to do. It does so with great clarity and, in view of the Government's previous assurances, we have set out in the amendment the declaration that it is for the avoidance of doubt— that is very important.
As my noble friend Lord Wedderburn has said, we understand that legal advice has been given to the Government. My noble friend has produced a very comprehensive document, which I have in my hand. It attempts to deal with the legal advice under which I believe the Government maintain that they have guaranteed the right to strike. We do not believe that they have effectively done that.
My noble friend Lord Bassam, dealing with this issue on Report, claimed at col. 123 on 6th October that the amendment we were seeking to make on that occasion would have caused confusion. I think the opposite is the case. If the Bill remains unamended but trade unionists take heart from the Government's repeated assurance that it is not their intention to offer less protection than the law currently provides, situations may arise in which, even after following the procedures specified in existing legislation, trade unions and their members will find themselves without the protection they thought they had. Surely that is a recipe for confusion.
656 As my noble friend Lord McCarthy pointed out on Report, it would mean that workers could be dismissed, and the dismissals would be regarded as fair because there had been a breach of statutory duty rather than of contract of employment.
This is a final attempt to put right what we believe has not been properly understood by my noble friends on the Front Bench. We believe that the amendment is necessary for the avoidance of doubt, and we commend it to your Lordships.
§ 11 p.m.
§ Lord McCarthy
My Lords, I shall try to do four things. First, I want to explain to those who have come to the debate without being concerned with previous debates how we have got where we are. Secondly, I want to focus on what Ministers have said so far, and quote from what they have said, because that is critical to the debate. Thirdly, I want to refer, as my noble friend Lord Wedderburn has, to what the legal advisers have said. We have got that advice only at the last minute, which is a great pity. Let us not criticise them, however, because in my view what the legal advisers are saying is not what the Ministers are saying. If anything, the legal advisers are on our side.
Finally, I want to try to make the House cringe a bit, and particularly to make the Government cringe a bit, in considering what would happen if the Secretary of State was ever foolish enough to use the provisions of the Bill. He tells us that he does not want to—and he is right not to want to.
How have we got here? The noble Lord, Lord Wedderburn, said at some stage that someone—I believe that he was talking about the Government— should ask themselves in "the bowels of Christ" whether they might conceivably be wrong. I believe that the reference is to Cromwell. That reference applies to us as well.
I was responsible for suggesting that we should leave the legislation for six months, which is in a way why we are here. One might say that we went over the top— and I am sure that the Government believed that we went over the top—when we said that we needed to take six months off to see whether we could improve the Bill. The main reason why I wanted to do that was because the Government were pretending that arbitration would come in, in an independent way, and decide the dispute in the Fire Service. That is nonsense. They pretended it was arbitration, although they knew that it was not arbitration. They were going to impose their own will by law, and I believed that that was wrong, unless they allowed independent assessment before they proposed what they wanted to impose on the Fire Service. That is how I got involved, and that is how we came up with the six-month proposal. It seemed to me that, without six months, the Government could not sort out the mess that they had created by rushing into that unthought-out position.
Maybe we were wrong, because from that point on the Government stopped listening. They believed that what we were suggesting was radical and ridiculous— nobody ever stops Bills for six months. Of course, if we 657 had had six months, there would not have been any disputes and, by now, we would have had a much better Bill. Never mind—maybe we should not have gone in in that frontal way. But that is why we are here and, if we went over the top, I apologise. I always apologise if I believe that it will help.
So we come to what the Ministers said. We debated the Bill in Committee and on Report, and here we are again—we have debated it for days and days. What the Ministers said was really very simple. They kept on saying that there was not a problem; they were so sure that there was not a problem. In Grand Committee, with total certainty, the noble Lord, Lord Rooker, said:they are seeking to provide for something that already exists".— [Official Report, 14/7/03; col. 178.]Later, he said:We have said repeatedly"—that is to say in the Commons as well as in the Lords—I have not brought chapter and verse with me"—which is a bit of a pity, but never mind—that the Bill does not touch on the ability of firefighters to take …action".—[Official Report, 14/7/03; col. 180.]There was total certainty, no equivocation. The Bill does not touch or brush on the ability of firefighters to take action. Later, in case your Lordships might not have got it, he said:If people do not like what the Secretary of State does and have a ballot … there is no problem".—[Official Report, 14/7/03; col. 181.]So the Minister told us three times that there was not a possible doubt. In case you think that that was only the Minister, the noble Lord, Lord Bassam, confirmed it. He said:if a dispute arises about something dealt with in an order made under this Bill, the ordinary operation of the trades union law will offer … protection".—[Official Report, 6/10/03; col. 131.]So what the Minister said was very clear, very precise and very complete.
I am sure that noble Lords will accept that that was rare. After all, it is rare in politics—though not in trade union law—for people to be that certain about the state of the law. My noble friend Lord Wedderburn always threatens the House, "If you question me, I will give you the cases". I will not do that. However, in 1871, 1875, 1906, 1965 and 1974—five times—similar assurances were made by similar governments about how things could not conceivably, possibly happen, but by God almighty they did. That is what it is like in trade union law.
Ministers, if I may put it like this, are gondoliers. They are friends of the gondoliers. The House will remember that Don Alhambra, the Duke and Duchess and Casilda said:Search in and out and round aboutAnd you'll discover neverA tale so free from every doubt—All probable, possible shadow of doubt—All possible doubt whatever!That is what they are; they come from Gilbert and Sullivan.
658 So in that context I turn to what their legal advisers said. It is quite remarkable that we got their legal advice. We got it by accident. We got it because the Minister, Mr Raynsford, said he would like to see us. We did not ask to see him. We went to see him and we talked to him and put our case. He had his legal adviser with him. His legal adviser said certain things and we said, "Is that so?", and he promised to write to us. Subsequently he wrote to us. The remarkable thing is that I do not think that he agreed with the Minister. I shall just give a few quotes at the end. If anyone challenges me I will give some more.
Our assertion was that if the order were frustrated by action on the part of the worker, for example, it would be outside the protection of the Trade Union and Labour Relations Act. The Minister's adviser said that it was "highly unlikely"—not impossible, but he could not conceive it. We said that our fear was that the breach of a statutory order was not the same thing as a breach of contract and would create additional liability. You might have expected him to say, "Nonsense". That was what the noble Lord, Lord Rooker, said. Reviewing the cases, he said that our position was "difficult to see". That was hardly decisive. I could go on and on. We said that the possibility of action under Clause 1(1)(a) was quite strong and that we thought that it would succeed. He said that in his view it would not succeed. He said that action under Clause 1(1)(b) was more likely to succeed, if only because it would be difficult, although not impossible, to prove.
I know that lawyers have to be careful and that they cannot be as dogmatic as politicians, but I put it to the House that these are not the certainties of Prescott, Raynsford, Rooker and Bassam. The only disagreement we have with the advisers is over likelihood and odds. Sometimes we say that it is odds on, but they tend to say that it is odds off. With the exception of the Ministers on the Front Bench, who are talking to each other and not listening to me, no one has a closed mind. Only those Ministers have closed minds. Everyone else has an open mind.
All we have to prove to satisfy the House and my noble friend Lord Davies of Coity is that there is a doubt. I suggest that the Minister's advisers think that there is a doubt. I suggest that any sensible man who is not stuck with something he said before that he cannot get rid of would say that there was a doubt.
I pass to my final point. I hope that I have more of the attention of my noble friends on the Front Bench. What happens if the Secretary of State, who is a canny man, is daft enough to use this ludicrous Bill? If we think about it, it is very similar to the position that we almost had—thank God that we did not—in relation to the postal service. It is very likely that there will be doubts about whether the firemen and firewomen have completed what they need to do to get the second 3½ per cent. That is the way productivity arrangements work. It is very likely that some will get it and some will not. It is very likely that those who do not will be very cross.
Although I hope that it will not be the case—I am quite certain that the union will not support this—it is quite likely that there may be some industrial action or 659 some non-co-operation. Some lads and lasses somewhere in the more militant parts of the United Kingdom will refuse to co-operate. They will say what they always say—"It is impossible. You are asking us to do things that cannot be done and because we cannot do these impossible things they will not give us the money". Some stupid employer somewhere will sack someone, because they always do, or they will threaten to sack someone. Just as occurred in the postal service, a lot of people will come out on strike because they have been threatened. They will go to a tribunal.
I asked my friends in the tribunal service about this matter. If I am wrong, I should like to be corrected. I said, "Surely when this is over, the Government will write to the employment tribunals and tell them not to take any notice of anyone who tells them that the measure is illegal". However, my friends told me that that would not happen and that the matter would be left to tribunal chairmen. We know what will happen. Some tribunal chairmen will say that the measure is illegal. They may even say that Wedderburn and McCarthy are right and that the measure is illegal. However, others will quote the Minister saying that the measure is legal. Some tribunals will say one thing and some will say another. It will not matter to the boys and girls because they will have had the sack. That is why they are appearing before the tribunal. Even if they were told that they had not got the sack, the employers would appeal and say something different. Eventually some employer or some third party will bring an action and it will be all the Government's fault.
§ The Earl of Onslow
My Lords, this has been a serious abuse of the procedures of the House. The Standing Orders say that the debate should be a tidying-up of provisions that have been amended by the Government. We should come to an agreement now rather than listening to hours and hours of Second Reading, Third Reading, First Reading, Committee and Report speeches all jumbled into one. I therefore move that the Question be now put.
§ The Deputy Speaker (Viscount Simon)
My Lords, I am instructed by order of the House to say that the Motion that the Question be now put is considered to be most exceptional procedure, and that the House will not accept it save in circumstances where it is felt to be the only means of ensuring the proper conduct of the Business of the House. Further, if a noble Lord persists in his attention to move it, the practice of the House is that the Question on the Motion is put without debate.
§ Earl Attlee
My Lords, my noble friend has been quite helpful. If the noble Lord could conclude his arguments, we could get on with deciding on this amendment and move on to the next one.
§ Lord McCarthy
My Lords, I shall end my speech. It is not my amendment, but my noble friend has a right to reply and no doubt the Minister will want to say 660 something. I just want to speak on the position of the Government. They may have heard this story; it is an old story. The position of the Government is like that of Lord Pirrie, who was the chairman of Harland and Wolff. As he stepped aboard the liner in Southampton he said, "I can't see why we want any lifeboats cluttering up the decks at all. After all, this is the 'Titanic'".
§ Lord Rooker
My Lords, to start with I shall share with the House some of the conclusions that I shall come to after I answer the debate; some things you need to put on record up front rather than wait for the end. I want to repeat to all noble Lords who have spoken that, on the best legal advice that the Government have received, we accept and believe that the Bill does not jeopardise or alter the protection of the firefighters or their union from immunity under the Trade Union and Labour Relations (Consolidation) Act. We have heard from no modern lawyers externally specialising in industrial relations, academic or not, giving a contrary view. In that respect, we take extra comfort from our own legal advisers.
Amendment No. 3 is a very technical legal amendment about trade union law. We have sought extensive legal advice on the matter, and are convinced that there is no need for the amendment. Like many noble Lords here today, I am not a lawyer—I am constantly reminded of that—and nor is the debate a legal seminar. However, I will try to explain my objections to the amendment in lay terms rather than legal terms, and I hope the lawyers among us will bear with me while I speak in plain English rather than academic legal jargon.
One central issue that has come from my noble friends relates to the advisers and their notes. I do not intend to quote extensively from them. If they are not in the Library now, they certainly will be tomorrow. Noble Lords could have read out the legal adviser's conclusion. After a balanced discussion of the issues, our legal adviser concluded:It follows, we would argue, that the effect of a direction, whether under section 1(1)(a) or (b), could not be to reduce or remove the protection that would otherwise be available to a firefighter or to the FBU under the Trade Union and Labour Relations Act".That could have been read out, and it is worth putting on record.
In layman's language, let us say that the Secretary of State directs a fire authority to make equipment available to a neighbouring authority. I think that I used part of the example on Report or in Committee. The union does not like the direction and calls for industrial action. The firefighters work for the fire authority and have a contract with the fire authority. So if they take industrial action, they are breaking their contractual duties. But so long as the procedural rules about balloting have been followed and the matter is a trade dispute, the union and firefighters will be protected by action by the Trade Union and Labour Relations (Consolidation) Act 1992, just like any other workers.
661 However, what the union would be trying to achieve through the industrial action is a breach of the fire authority's statutory duty under the direction. So, as my noble friend Lord Wedderburn would say, following Meade v Haringey London Borough Council, a member of the public will be able to obtain an injunction against the union (one cannot obtain an injunction against the firefighters) preventing it from calling a strike because by doing so it will be inducing a breach of statutory duty. I must also note as an aside that the case was decided by Lord Denning in 1979 and the main issue was in fact whether the Education Act gave rise to statutory duties, an issue on which the Meade case has subsequently been criticised by the case of the X, the unidentified party, v Bedfordshire County Council in 1995.
§ Lord Rooker
My Lords, can I just finish? I would like to be able to make a considered response and I promise that before I sit down I will give way. If I am going to be subjected to constant interruptions, I shall not be able to give a considered response to a technical legal argument. I insist, frankly, on my right to put the case.
First, one must remember that this Bill of itself does not create new statutory duties; it simply gives powers to the Secretary of State to make directions. We have repeated on numerous occasions the circumstances when the Secretary of State may do so and those powers are time limited by the sunset clause to two years.
Might any directions, if made, create statutory duties? For a Meade-type claim to succeed, one would have to show that there was a statutory duty which was actionable for damages at private law. This is not the same as the authority having a public law duty to carry out the Secretary of State's directions. A public law duty would allow a person with sufficient interest judicially to review the fire authority in the administrative courts if it had failed to carry out those directions.
But to bring an action, to obtain an injunction against a union, an individual would need to show that if the fire authority did not carry out the directions, a member of the public could sue the authority for damages. I ask the House to note that not even the fire authority's primary duty on fire fighting under Section 1 of the Fire Services Act 1947 gives rise to such a claim. There I refer to the case of Capital & Counties plc v Hampshire County Council in 1997. If a homeowner cannot make such a claim where no directions have been made under a Bill, it would seem odd that he should be able to do so if a direction is made under this Bill.
Ordinarily, a breach of statutory duty does not give rise to private law claims. Directions under the Bill will essentially be about the fire authority's administrative or operational functions for the benefit of the public at large and are therefore not amenable to family and 662 private law claims. Furthermore, there would also be numerous other difficulties with such a claim; for example, how would a homeowner be able to show that the damage caused by fire to his home was directly attributable to the failure on the part of the fire authority to carry out the Secretary of State's directions? We believe that any action would therefore fall at the first fence.
Even if it were the case, a strike may not necessarily cause the authority to be in breach. It may still be able to carry out the order whether or not the workforce is available; for example, it can hand equipment to a third party without firefighters necessarily being available. But even if the cause of action does arise, that does not put firefighters in a position different from any other employees whose employer may have statutory duties placed on him. Indeed, if the amendment were accepted for the avoidance of doubt, it could in fact create doubt. It could lead one to question the position of other groups of workers who carry out functions governed by legislation and whose working conditions may change as a result of legislative changes.
Therefore, we see no reason to accept an amendment that would litter the Bill with unnecessary "for the avoidance of doubt" clauses. I say that because, clearly, the amendment accepted in Grand Committee was an "avoidance of doubt" clause. If the amendment were accepted, it would serve only to cast doubt on any other legislation that was silent on the issue.
My noble friends have said repeatedly, with the best of intentions, that they want to protect the right to strike for firefighters. We claim, according to our best legal advice—I repeat: that advice is not contradicted by any outside independent bodies—that that right is not under threat as a result of the Bill. The Bill does not jeopardise or alter the firefighters' or their union's protection from immunity under the Trade Union and Labour Relations (Consolidation) Act. Therefore, I respectfully ask my noble friends to withdraw the amendment.
Because my noble friend has been kind enough to allow me to put on the record the Government's view, I want to stick to what I said earlier. I shall be happy to give way and shall seek to answer any questions that he wishes to put to me; if I sit down, I shall conclude the debate.
§ Lord Davies of Coity
My Lords, am I entitled to ask a question at this point? I still have a little difficulty. Like me, the Minister is not a lawyer. He said that the amendment could create doubt in other areas of legislation. I am not sure that I follow that point. However, if it did, perhaps other elements of legislation should be corrected so as to avoid the occurrence of doubt. I have not heard a legitimate objection to the amendment, which seeks only to reinforce what the Government said they wanted to do—that is, to protect firefighters.
§ Lord Rooker
My Lords, the right of firefighters to strike is not under threat or jeopardised as a result of 663 the Bill. I cannot answer for other Bills or for the knock-on effect of the legislation. I freely admit that our legal advice is under challenge, although not from outside Parliament. Every day of the week plenty of people come forward with legal advice which has not been asked for by government, ut it is all read and considered.
However, I also say to my noble friends that during the course of the Grand Committee and, indeed, even during the Report stage I went back to my right honourable friend Nick Raynsford and to the legal advisers and asked them to go through all the amendments again. I asked whether we could accept any one of them which would improve the Bill without adding any possible unintended unfortunate consequences. The matter has not been dismissed; the amendments tabled on Report and in Grand Committee have been gone over repeatedly. The matter has been genuinely considered.
We also have to ensure that we do not repeat things in legislation. I have been told by parliamentary counsel—it is something that I have learnt to accept as a Minister—"Don't put the same thing in a Bill twice or you're asking for trouble". That is absolutely fundamental. When something is put in twice, my learned friends often end up in court stuffing their pockets and no one knows what will happen.
Therefore, having gone over the amendments tabled in Grand Committee and on Report, we have genuinely asked, "Can we toss them a bone? They seem sincerely concerned." I do not question anyone's sincerity. We have asked, "Is there anything that we could usefully add or accept from the amendments that would not cause a problem in the operation of the Bill, if enacted?" One has to remember that because, by and large, it is never mentioned.
We do not want to operate the Bill as an Act. It has a limited life of only two years. It will be operated only in the most extreme circumstances—for the Secretary of State to take powers to give workers a pay rise. The dispute that has flared up stops them getting a pay rise. I made it clear in Grand Committee that we were not contemplating pay reductions. Such a power is unusual, to say the least, but it is the kind of power that would be operated. We do not want to use the Bill or Act. It is being introduced as a longstop on the basis of what has taken place not over the past six weeks or six months but over the past 12 months.
I shall not go into the current situation because it would be barmy to do so, but what my right honourable friends the Deputy Prime Minister and Nick Raynsford said when the Bill was in the other place is as valid today as it was then. They have reluctantly brought forward the legislation. They do not want to use it, but they feel that in the public interest it is absolutely necessary and we have gone over it with a fine-tooth comb. As I have said repeatedly at every stage and between the stages—we have had a long time in which to do it—our best judgment, with the best advice that we could have, is that the Bill does not jeopardise or alter the firefighters' or their union's protection from immunity 664 under the Trade Union and Labour Relations (Amendment) Act. If no one else has any other question I respectfully ask the noble Lord to withdraw his amendment.
§ Baroness Hamwee
My Lords, before the Minister sits down, I have a question that follows on from the previous one. I well understand the point made by the Minister that we should be careful in any legislation not to affect what may be in existing legislation. Leaving aside whether the amendment is necessary, in answer to the question on what damage the amendment would do, the Minister appeared to refer to prospective legislation. Perhaps he has some examples of existing legislation that he can give to the House. Are there current illustrations that he can give? Perhaps I should talk for a moment or two longer so that he can receive help on that, although he may have some examples in his brief.
§ Lord Rooker
My Lords, I do not have examples that would relate to the way in which the noble Baroness has asked her question; for example, in relation to other current disputes or anything that is in the offing. I did not imply that there are doubts about other legislation or that people's working conditions have changed as a result of legislative changes. In itself that is sometimes unusual, but in relation to prospective legislation I want to make it clear— although it has been raised only in passing—that there is no direct connection between this legislation and what will presumably come in the Queen's Speech on the reorganisation of the fire and rescue services based on the White Paper. I have no doubt that these issues will be deployed in that respect again, but there is no hidden agenda to connect one with the other.
I have one example. Teachers' pay and conditions are settled under a statutory order. I do not make a great play of that, but I make the point that there are examples of other workers whose pay and conditions are settled by legislation, which may create a doubt. In answer to the noble Lord, Lord Davies of Coity, I do not believe that that is a doubt which means that one has to go back and search other legislation. With the best will in the world and the best advice that we can have—I repeat that on behalf of the Government—we are not playing games. We do not have a hidden agenda to take away the right to strike from firefighters and I reject that as an outrageous point if anyone makes it. It is not part of our agenda, explicit or implicit. Our view is that this legislation does not do that.
§ Lord Wedderburn of Charlton
My Lords, I am certainly not playing games. I am deadly serious. The Government do not want this Bill, but they are prepared to push it through in the face of quite legitimate, reasoned opposition, as a stopgap. Our amendment is a belt and braces. It is not a matter of whether the Government want to operate the Bill. That is not the question of law on which my noble friend Lord Rooker gave us a great disposition in legal terms. Lord Asquith once described a Bill and 665 someone objected to his description so he said, "I know; I am talking English not law". My noble friend Lord Rooker did not know that he was talking law rather than English. He gave us a lot of law. He spoke as a lawyer, and so he should because your Lordships are to make law in this Bill.
There has been talk about lawyers who stuff their pockets—Government Ministers are fond of saying that. I have not made a buck out of this Bill and I do not suppose I shall be instructed upon it, but I am concerned about what the Bill says. Either Front Bench can have all the intentions, all the agendas and all the subjective states of mind it likes, and that does not count for a peanut in a court. The court is concerned with the Bill and the Act when it is passed, in its background and in its context, and what it says. We are asking the Government to put their intentions in the Bill. They will not.
The Minister says that they consulted their legal advisers back in early June. In Grand Committee, we begged them to let us have a full description of the legal grounds on which they were resisting our amendments. They would not do that. Noble Lords can read the speeches. I hesitate to read out anything more, but this legislature is for challenging what Ministers put on the record. In the records of Grand Committee and Report there is no legal argument. I got it last Friday afternoon, in a fax. That is what the Minister relies upon tonight and noble Lords cannot even see it. He says that it is not in the Library of the House. I was told that it was going to be widely distributed. My memorandum is in the Library. Anyone who has not read it should go and read it because it deals with every one of the points that my noble friend Lord Rooker made.
First, my noble friend said that the Meades case was decided by Lord Denning. That is what the note from the right honourable Mr Raynsford said. That is not accurate. It is not accurate because it was decided by the Court of Appeal. My noble friend Lord Rooker appears never to have heard of Lord Justice Eveleigh. Of course he had not; it is not in his legal advice. Lord Justice Eveleigh laid down the same principle. Then my noble friend says that the statutory duty is not open to an injunction if it is not actionable for damages. If he looks at the Court of Appeal decision in Associated British Ports v The Transport and General Workers Union, which was the case where the employers got an injunction against the dock strike, he will find that the Court of Appeal says that that is not necessarily so. Has he read or received advice on that case? I doubt it, because the legal note does not mention the Court of Appeal judgments; it only mentions the House of Lords Appellate Committee, where the case went off on totally different grounds.
So my noble friend's lawyers do not appear to have heard of that. He repeats this statement in the House. He tells your Lordships to make law on that basis, which is inaccurate. He also says that an individual of the public would not be able to claim. I have never argued that he would. I argue what was said by Lord Fraser of Tullybelton in a leading case, that a member 666 of the public who suffers special damage in his interests would be able to bring an action for an injunction for breach,of his private right because of the interference with the public right which inflicts special damage on him".If a company owns a factory, and it is in an area where fire stations are being shut, it will have a special interest. It needs to show that its interests could be damaged when it applies for an injunction. That is the rule of law. When my noble friend Lord Rooker pronounces a rule of law that every member of the public cannot bring an action for an injunction, he is tilting at windmills.
Furthermore, my noble friend says the leading case of Capital and Counties, in 1997, shows that I am wrong on all this. If he looks at my memorandum, which I do not think he has read, he will find that I deal with that case. I am half inclined to read the true account of that case. It deals with something quite different. If noble Lords look at my memorandum they will find it in there. I have said that this is not a basis on which the Government's argument is right. My noble friend then said that all these things had to be proved. When he said that—adding up his arguments—he ignored the basic fact. I am not surprised, because the legal advisers' note ignores the central legal point—namely, that in an injunction case, you have to prove only that something is arguable; not a full case beyond reasonable doubt or on the balance of probabilities. That is why trade unions are anxious about labour injunctions; that is why inducement to breach statutory duty produces an arguable case.
Lastly—the noble Baroness, Lady Hamwee, and my noble friend Lord Davies of Coity naturally took up this point—the Minister argued that that was all very worrying, because inducing a breach of statutory duty might be actionable after all, that that might arise under other Acts and that the amendment should not be carried because it would do something special under the Bill. What are those other Acts? Is that part of a new policy to enforce statutes that affect workers to prevent them having a right to strike in trade disputes, even if they have held a ballot? If so, that is very worrying.
The Minister was then asked for an example. At first, he could not give one, but after receiving a little prompting, he mentioned the teachers. A number of decided cases in the courts deal with the teachers; I deal with them in my paper. I had better not mention them, or else the Minister, having propounded a lot of law, will tell me that I am being legalistic. But he will find in my paper, especially in the footnotes, reference to various decisions of your Lordships' Appellate Committee in which it has been pointed out—notably by the noble and learned Lord, Lord Hoffmann—that there may well be a worrying conflict between the statutes governing teachers' conditions and what the House has recently held to be their right to strike.
In fact, it is much easier to spell out the right to strike from the education legislation than from the Bill. If the Government were to introduce into the Bill the 667 safeguards that we can find to make it arguable that teachers have the right to strike, they might have made a step forward.
New statutory duties are created by the Bill. Firefighters would be picked out in a discriminatory fashion for new limitations on their right—after a ballot in a trade dispute—to take industrial action that induced any non-compliance with such statutory duties. The amendment does no more than preserve the application of existing law for firefighters.
I notice that my noble friend did not deal with closures of stations. Noble Lords will notice that the example of their having a right to strike now with regard to impending closure of stations but their losing that right under the Bill as it stands was never answered. It never has been answered; it was not answered in the legal advice—which perhaps one day your Lordships will see.
I invite the Government to publish every document on the matter. I defy them to deny that most lawyers see perfectly well what is the trouble. I have consulted many scholars and practitioners in the field. I have spent 50 years with the subject. Noble Lords can study the record: I have never taken a point against my Government that has not had a basis in case and statute law. I have spent two days assembling this case, and I want to conclude—
§ Earl Attlee
My Lords, the noble Lord has given us a virtuoso performance—one that I could not possibly match—but perhaps he could tell the House what he is going to do with his amendment.
§ Lord Wedderburn of Charlton
My Lords, noble Lords on the Labour Benches will notice that the Opposition do not really like this debate at all and want to use every procedural device they can think of to get it out of the way because it is embarrassing to them. I shall now come to a conclusion.
For anyone to suggest that the Bill as drafted does not produce a serious risk of extra liability to the firefighters' union is false. I rarely say that a proposition of law is false, but that one is false.
Let us remember that the issue was never discussed in the Commons. People who want to shut up the debate do not care that it was never discussed there. They do not think much about the House of Commons, but perhaps that is a good thing given its present state. For any Labour Member of either House to vote against such an amendment as a belt-and-braces operation would be a betrayal. For any Peer of any party to vote against it would be to support the policy of militarising the fire service. It would be a provocation, given the present delicate balance of our negotiations, which we watch with anxiety.
As the lower House has not been able to debate the matter, I hope that noble Lords will see that what happens to the liberties of firefighters is in their hands. It is because of that that I am obliged to press the amendment to see at least what those who remain in the building have to say about it.
§ 11.41 p.m.
§ On Question, Whether the said amendment (No. 3) shall be agreed to?
§ Their Lordships divided: Contents, 8; Not-Contents, 69.
|Addington, L.||McCarthy, L. [Teller]|
|Davies of Coity, L.||Roper, L.|
|Hamwee, B.||Turner of Camden, B. [Teller]|
|Hoyle, L.||Wedderburn of Charlton, L.|
|Acton, L.||Gould of Potternewton, B.|
|Amos, B. (Lord President)||Grocott, L. [Teller]|
|Andrews, B.||Hanham, B.|
|Ashton of Upholland, B.||Harris of Haringey, L.|
|Attlee, E.||Hilton of Eggardon, B.|
|Bach, L.||Hollis of Heigham, B.|
|Bassam of Brighton, L.||Hughes of Woodside, L.|
|Bernstein of Craigweil, L.||Hunt of Kings Heath, L.|
|Billingham, B.||Jay of Paddington, B.|
|Brennan, L.||Jones, L.|
|Brooke of Alverthorpe, L.||Lofthouse of Pontefract, L.|
|Burlison, L.||Macdonald of Tradeston, L.|
|Byford, B.||McIntosh of Haringey, L.|
|Campbell of Alloway, L.||McIntosh of Hudnall, B.|
|Carter, L.||MacKenzie of Culkein, L.|
|Chandos, V.||Mackenzie of Framwellgate, L.|
|Colwyn, L.||Massey of Darwen, B.|
|Cope of Berkeley, L.||Montrose, D.|
|Crawley, B.[Teller]||Morgan, L.|
|Desai, L.||Onslow, E.|
|Dixon, L.||Pendry, L.|
|Dubs, L.||Pitkeathley, B.|
|Elder, L.||Radice, L.|
|Evans of Parkside, L.||Rooker, L.|
|Evans of Temple Guiting, L.||Scotland of Asthal, B.|
|Farrington of Ribbleton, B.||Simon, V.|
|Faulkner of Worcester, L.||Skelmersdale, L.|
|Filkin, L.||Symons of Vernham Dean, B.|
|Fookes, B.||Turnberg, L.|
|Gale, B.||Warner, L.|
|Gibson of Market Rasen, B.||Whitaker, B.|
|Goldsmith, L.||Whitty, L.|
|Gordon of Strathblane, L.||Woolmer of Leeds, L.|
|Goudie, B.||Young of Old Scone, B.|
§ Resolved in the negative, and amendment disagreed to accordingly.
Lord Wedderburn of Charlton moved Amendment No. 4:
Page 2, line 29, at end insert—
§ The noble Lord said: My Lords, it is now 10 minutes to midnight. The Government and Opposition Front Benches have had their way. It is strange to see a Labour Front Bench voting with the Tories. It does not happen all that often. Now, they have an amendment that, I thought, they might agree to, even if they cannot accept the first one.
§ I shall say one general thing. I do not understand why noble Lords, many of whom have spent some time in the Labour and trade union movement and have read quite a lot, find it all so difficult. There is some inhibition on their understanding of what is going on. They seem not to ask themselves the sort of questions that they would ask about things generally. I shall try to deal with the amendment in four minutes—very slowly.
§ The debate tonight has—I must tell your Lordships—reminded me of my German friends, who used to tell a story about their chancellor, Herr Kohl. He lost his official car and had to take a taxi. Gazing at him through the mist, the taxi driver said, "It's a long journey. I will tell you a story. It's about Herr Kohl, the chancellor". The other said, "I am Chancellor Kohl". "Ah", said the taxi driver, "I shall tell it to you very, very slowly". Tonight, I feel as though I must almost come to a grinding halt in my explanation to get people to understand something that trade union students whom I have been in seminars with for 40 years understand at the drop of a hat. They have not forgotten their experience in the workplace.
§ The amendment says, first, that, if a statutory instrument is made under the clause dealing with conditions of service, it shall operate as a contractual matter. I know that the Government say that that is their intention and that they think that that is how it will work, but they seem totally blind to the ability of lawyers—including the judiciary—to take a different view. All this does is say, "That's your intention. That's what we want. We'll put it in the Bill". If they do not accept that, they must have some other reason. No one in their right mind would think that it is totally impossible for it to be treated as a statutory duty and not a contractual duty.
§ The simple reason is that when a statute wants an obligation arising from it, or an order made under it, to operate through the contract, it says so. That great Act introduced by my friend Barbara Castle—the Equal Pay Act—states that the obligation to have an equal pay term is in the contract of employment. It was made clear. The Government did not rest on some vague notion as to what the courts might say.
§ Therefore, the first part of the amendment is common ground. The matter should be made clear in the Bill. We know what is in the Government's mind, which is the minds of all honourable men. But why not say it on paper? The second part of the amendment is more difficult now. I was going to say that orders made 670 under Clause l(l)(b) of the Bill—or the Act as it will be—also should be seen as imposing special duties that very probably would not infringe the right of strike. I say, "very probably", because that is my view, but at least it would be something. It states that an order, such as an order closing fire stations or an order transferring equipment from one district to another— an example taken by the Minister—shall operate as a duty owed to the Secretary of State. What is wrong with that? He is the person who makes it; he is the person looking after what the Minister has called the public safety. So it is a duty to the Secretary of State. The person to enforce the duty is him. That cuts out— or, arguably, almost certainly cuts out, which is the correct way of putting it—actions by anyone else.
§ What is wrong with that? Do the Government want actions for injunctions brought by other fire authorities and by persons with private proprietary interests? Is that what they want to enforce their orders under Clause l(l)(b)? I did not think so. Do the Government want to introduce the new regime of orders being enforced by all kinds of people on public sector workers? We do not want that. Public sector workers are entitled to their rights under the ILO Convention 151.
§ Therefore, as regards orders to fire authorities, the fire authority must obey the Secretary of State as is the rule of law. If it does not and if any legal action is to be brought, let it be brought by the Secretary of State. We trust him to bring the action where the public interest is involved. He will not bring actions which simply protect or aim to protect some small proprietary interest. He will look after those proprietary interests in his discretion. In fact, we all know that this is theoretical—it is the only theoretical part that I have advanced—because he would simply telephone the fire authority and say, "What are you doing? You put my order into effect. If you don't, I could get a court order".
§ Therefore, I hope that our second amendment is acceptable to the Government. The first part, under Clause l(l)(a), would be contractual. The second part, under Clause 1(1)(b), would be enforcement by the Secretary of State. That would cure the doubt, which, although it has not reached the ears of some Ministers, has reached others and will increasingly reach those who look at the Bill in its present deplorable state. I beg to move.
§ Lord Rooker
My Lords, as my noble friend says, Amendment No. 4 seeks to do two things. First, it provides that the orders under Clause 1(1)(a) shall take effect as imposing binding contractual rights between the firefighter and the fire authority. Secondly, it provides that the order under Clause 1(1)(b) will take effect by imposing duties on the fire authorities which are owed to the Secretary of State and enforceable only by him. We 671 have been around this course before. I have stated previously that, in our view, the amendments would have the effect that I have just outlined and are therefore unnecessary and inappropriate.
First, any order made under Clause 1(1)(a) will already fix or modify the firefighters' conditions of service. That is the whole purpose of the function. Firefighters' contracts of employment will be changed by operation of the law imposing binding contractual rights on both parties. For example, a firefighter would be able to bring a claim against his employing authority if it failed to pay him the additional pay set out in the order. We could get into a posit ion where the Secretary of State is forced, in the circumstances I explained earlier that we do not want to see arise, to ensure that firefighters get the pay rise that the dispute then taking place prevents them getting. If they do not like it, they would still be able to bring a claim against the employing authority if it failed to pay the additional money set out in the order. So the amendment is absolutely unnecessary because the Bill already provides for this and I do not think that the position can be contradicted.
Similarly, Clause 1(9) already provides that a fire authority shall have a duty to comply with directions contained in orders made under the Bill. It is made explicit on the face of the Bill that the fire authority shall have that duty. However, I accept that the amendment goes further, as it did in Grand Committee and probably on Report. It provides that only the Secretary of State can enforce such a duty. We do not think it right to restrict the Bill in this way. I shall repeat an example which I believe I gave in Committee.
If the Secretary of State is minded to make an order requiring one fire authority to use certain facilities provided by a second fire authority, that second authority might well make arrangements or incur expenditure in anticipation of the move taking place. Where the first authority refuses to comply with the Secretary of State's direction, it ought and should be possible for the second authority, if it wishes, to seek an order by way of judicial review requiring the compliance of the first authority. I cannot see anything wrong with that; we are talking here about fire authorities.
As I have said, I accept that behind the amendment lies exactly the same issue, although my noble friend did not make much of it in the short time he allowed himself to speak to it. It is the exactly same issue that has been repeated several times in your Lordships' House; that is, the accusation that the Bill will create statutory duties which may allow injunctions to be obtained in the event of industrial action by firefighters. I repeat: Nick Raynsford and I corresponded with my noble friend. My noble friend has met the Minister. I think that we have responded to the points made in Amendment No. 3 and I shall not repeat them.
672 We have given very careful consideration to this issue. It has been raised before and it is covered by the point I made earlier: I have asked officials whether there was a possibility that we could absorb any of the amendments to satisfy noble Lords, but without causing problems for the Bill or the way that it is intended to operate. However, for the reasons I have set out before noble Lords and in correspondence, we continue to believe that the amendments are not required. Their key bones are already included in the Bill and therefore I respectfully ask my noble friend to withdraw his amendment.
§ Lord Wedderburn of Charlton
My Lords, one has to put some points on the record. I have not had any correspondence with the Minister on this, and I have not had much correspondence with my right honourable friend Mr Raynsford. I had a letter from him sent by fax saying that it was such a pity that we could not have further meetings and correspondence, but the Bill had been brought forward by a week. Everything had to stop for what I thought was going to be a prolonged negotiation about the legal position. I did not even have a chance to put anything on paper until this Saturday and Sunday.
I say this to the Minister: I ask the Government to publish the exchange of memoranda on this matter, because they deal with this issue as well. I did not refer to it in my speech, but this matter is dealt with at length.
I turn now to the two points made by my noble friend. He said that it is unnecessary to put in the Bill the point that orders on conditions of service operate as contractual obligations. Why is that unnecessary? My noble friend responded by saying that such an order would modify the conditions of service. That does not necessarily make it contractual. There are dozens of regulations which affect conditions of service and which create statutory duties; the right to redress for unfair dismissal is created by a statutory right and duty. It does not become part of the contract of service, but on my noble friend's argument, it should do so.
Health and safety regulations confer rights and duties on workers—it should not be forgotten that duties on workers are created by safety regulations. In some systems of law, they operate through the contract of service. The French regard it as bizarre, but that is not the case in our system. But in our system they operate as statutory duties. If what the Minister said were right, there would be huge new chapters in the contract books, but they are not there. We are asking him to do what Barbara Castle did with the Equal Pay Act and make it clear that this falls under contract, not statutory duty.
673 The Minister then referred to the duties imposed under Clause 1(9) as statutory duties on the fire authority to obey directions from the Deputy Prime Minister. He always gives the example of a pay rise. If we are considering theoretical cases, it is not really very likely that industrial action would be organised against an order imposing a pay rise—but that is what we are talking about.
We are discussing directions which order fire authorities to do things with their property, with their arrangements, with their control rooms, with all kinds of arrangements for the fire service which are at the centre of current negotiations—I go no further than that, but it is a worrying feature—and to close fire stations. That is what this is about.
The Minister said that if they do not close stations when they are told to do so, another authority could apply for judicial review. Does he not know the difference—he obviously does not because it is not in the legal advice—between judicial review in public law and an action for an injunction under the text books on all the regulations and law applying to private law? They overlap these days, but judicial review has got nothing to do with it.
Yes, there is a statutory duty under Clause 1 (9) for the fire authority to comply with directions, but if you have ever been anywhere near a court in such a case you will realise that that is the beginning of the case, not the end. The court will ask, "To whom is this duty owed?" "By whom is it enforceable?" And, "If it is enforceable by that plaintiff or that claimant, by what remedies?" There is not a word about any of that because the legal advice is faulty.
Noble Lords on the Front Bench can shake their heads. No doubt they are great experts on whether the legal advice could not possibly be faulty, but what silly nonsense. Any advice can be faulty. I have given advice that I have recognised afterwards had a fault in it. But they do not believe they can possibly be wrong.
As my noble friend Lord McCarthy said, anyone with any knowledge of the subject—and many noble Lords on this side do have knowledge of the subject, as much as they pretend not to understand—will know that similar things were said in the 1870s. In 1875 the TUC nearly wound up its parliamentary committee because it received assurances such as those advanced today that the Government were right; that the legislation left no threat to trade unions. In 1900 there was the Taff Vale case and similar cases in subsequent years.
All this has been said before; we have heard it all before. The Government are making the same mistake as before and the amendment would save them. But they will go down in history as a government who did not care enough to think that they might be wrong. If there is a doubt as to whether they are wrong, injunctions will lie under the Bill as it stands.
674 However, it is now ten minutes past twelve. We have had a jolly debate. The firefighters will suffer. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
Lord Campbell of Alloway moved Amendment No. 5:
Leave out Clause 1.
§ The noble Lord said: My Lords, I have spoken to the amendment already. No noble Lord who has been present throughout the debate has spoken in favour of the Bill, other than the noble Lord, Lord Rooker. It is a bad Bill in its construction.
§ Lord Rooker
My Lords, does the noble Lord intend to divide the House or not? He has already spoken to the amendment.
§ Lord Campbell of Alloway
My Lords, it is a bad Bill. As a matter of construction, it no longer reflects the true intentions of the Government. Not only is it a blunder, it will exacerbate further strife. The amendment would remove Clause 1, which goes to the heart of the Bill. I beg to move.
§ 12.10 a.m.
§ On Question, Whether the said amendment (No. 5) shall be agreed to?
§ Their Lordships divided: Contents, 10; Not-Contents, 60.675
|Addington, L.||Fookes, B.|
|Attlee, E.||Hamwee, B.|
|Byford, B. [Teller]||Hanham, B.|
|Campbell of Alloway, L. [Teller]||Roper, L.|
|Cope of Berkeley, L.||Skelmersdale, L.|
|Amos, B. (Lord President)||Gibson of Market Rasen, B.|
|Andrews, B.||Goldsmith, L.|
|Ashton of Upholland, B.||Gordon of Strathblane, L.|
|Bach, L.||Goudie, B.|
|Bassam of Brighton, L.||Gould of Potternewton, B.|
|Bernstein of Craigweil, L.||Grocott, L. [Teller]|
|Billingham, B.||Harris of Haringey, L.|
|Brennan, L.||Hilton of Eggardon, B.|
|Brooke of Alverthorpe, L.||Hollis of Heigham, B.|
|Burlison, L.||Hoyle, L.|
|Carter, L.||Hughes of Woodside, L.|
|Chandos, V.||Hunt of Kings Heath, L.|
|Crawley, B. [Teller]||Jay of Paddington, B.|
|Davies of Coity, L.||Jones, L.|
|Desai, L.||Lofthouse of Pontefract, L.|
|Dixon, L.||Macdonald of Tradeston, L.|
|Dubs, L.||McIntosh of Haringey, L.|
|Elder, L.||McIntosh of Hudnall, B.|
|Evans of Parkside, L.||MacKenzie of Culkein, L.|
|Evans of Temple Guiting, L.||Massey of Darwen, B.|
|Farrington of Ribbleton, B.||Morgan, L.|
|Faulkner of Worcester, L.||Pendry, L.|
|Filkin, L.||Pitkeathley, B.|
|Radice, L.||Turnberg, L.|
|Richard, L.||Warner, L.|
|Rooker, L.||Whitaker, B.|
|Scotland of Asthal, B.||Whitty, L.|
|Simon, V.||Woolmer of Leeds, L.|
|Symons of Vernham Dean, B.||Young of Old Scone, B.|
§ Resolved in the negative, and amendment disagreed to accordingly.676
§ Moved, That the Bill do now pass.—(Lord Evans of Temple Guiting.)
§ On Question, Bill passed, and returned to the Commons with amendments.
§ House adjourned at twenty-two minutes past midnight.