HL Deb 06 October 2003 vol 653 cc94-134

8.34 p.m.

Lord Evans of Temple Guiting

My Lords, I beg to move that the Bill be now further considered on Report.

Moved, That the Bill be further considered on Report.—(Lord Evans of Temple Guiting.)

On Question, Motion agreed to.

Clause 1 [Powers of the Secretary of State]:

Lord McCarthy

moved Amendment No. 18: Page 2, line 18, at end insert— (5A) Where the Secretary of State submits proposals under subsection (3) and the negotiating body or a member of it submits to him within the requisite period a reasoned statement not accepting the proposals, the Secretary of State shall not make the order until the process of assistance is exhausted. (5B) In that process the Secretary of State shall consult with ACAS with a view to the appointment, after consultation with the members, of assistance from a person or body for the purpose of mediation, conciliation or arbitration, as seems to him and the Service appropriate, in order to resolve the issues without delay. (5C) Where the issue is the subject of arbitration, the Secretary of State shall take the result of that arbitration into account as guidance before making any further proposals. The noble Lord said: My Lords, we return to a debate that we raised in Grand Committee because we did not receive satisfactory replies at that stage. This amendment has, in effect, three limbs. It suggests that when proposals are met by a reasoned rejection on the part of either one or both of the parties, then the Secretary of State should consult ACAS, the official conciliation machinery, in order to see whether it can help by introducing some form of third-party dispute resolution—conciliation, mediation or possibly arbitration. The amendment merely suggests that if that happens and if, as a result of the initiative taken by the Secretary of State, there is some positive movement, either in terms of mediation or arbitration, then that should be taken into account before the order is issued.

This is, in effect, our final attempt—on Report, at least—to introduce into the consideration of the problems which arise from the Bill the possibility of what I prefer to call an "independent assessment". But the essential nature of the kind of independent assessment that we suggest in the amendment is that it takes place after the introduction of the Secretary of State's orders.

When we debated this matter previously, the noble Lord, Lord Rooker—I am sorry that he is not in his place—said, "Well, of course, we have built into this process all kinds of measures of conciliation, mediation and arbitration. We even have" (and it is true) "a very forward-looking provision whereby we can have ex parte"—that is, one party—"mediation and arbitration. How could you be more progressive than that?" He said, so far as I remember and he is not here to correct me, "We are a listening government".

A Noble Lord

Where is he?

Lord McCarthy

I do not know where he is but never mind. He said, "We are a listening government. We have listened to what you say and we tell you that all these provisions exist".

However, when this Government say that they listen, I am reminded of Falstaff. The House will remember that Falstaff listened but he did not know it. He said that he suffered—he was rather proud of it— from the malady of not marking; in other words, he failed to reply to the arguments. He failed to provide any additional data which showed that the arguments put forward against him were wrong. He replied in the way—I believe that this is very much the Government's way of replying to points that we have put forward in this debate—that the late Lord George-Brown used to do. He used to say that he reacted to criticisms with what he called "ignoral". The Government are absolutely dominated by the philosophy of ignoral. They ignore all our suggestions; nevertheless, we shall try again. I want to make several points in relation to this amendment.

First, we are not suggesting any interference in the conciliation, mediation and arbitration procedure that exists before an order is introduced. Of course, there are perfectly adequate procedures at present. As far as I know there is nothing at all—maybe the Minister charged with the debate will tell me—that happens after an order is introduced. The moment an order is introduced, the moment the Secretary of State gets on his high horse and says that there shall be an order, there is no appeal; there is no conciliation, no mediation, no arbitration—nothing. We are talking about what happens after the Government have introduced their order.

My second point—I shall be pleased to be corrected— is that I believe that this makes the fire fighters unique. I shall say why and in what way I believe that they are unique. One can take the view, as different countries in different ways have and as to some extent this country has, that there are certain groups of workers in the economy whom we do not want to see involved in industrial disputes; we do not want to see them on the stones. Their work is too essential so we restrict or discourage their general right to strike because they are an essential service. As they are an essential service, industrial action is particularly unnecessary and counterproductive. I accept that.

We say that about the Army; we say that about the police; we say that about the Prison Service; we say that to an increasing extent about health workers, doctors, nurses, paramedics and people of that kind in the health service. To some extent we say that about top civil servants; we say that about judges; we even say it about members of the Government and about the Prime Minister. He is not expected to take industrial action to get decent wages. In a sense, such people are above and beyond that; they are in a special category; they are essential to the work of the body politic. I accept that.

However, almost all have some alternative, some substitute, some extra something to compensate them for the fact that society does not expect them to use industrial action. The most common factor is that they have a form of pay review, an independent injection of outside expertise, in which the Government make their case, in which the union makes its case and in which the pay body—we have an increasing number of them—takes the decision and says that it believes that the Government and the union are wrong and that the reasonable view is somewhere in the middle.

Where industrial action is inappropriate we have what I call some form of independent assessment. We have that because we are a civilised society. If one does not give that to workers who have no right to use crude industrial power—many of those workers would have a lot of crude industrial power if they used it—they will be either slaves or outlaws. They would be slaves if they had no alternative but to buckle down and do whatever the Government said, or if they took action that essentially was unlawful, they would be outlaws.

In the Bill—I say this with great concern and regret as it is being done by my own party—the Government are making the fire service slaves or outlaws. They are offering the fire service no alternative. Before the chopper comes down, before the final decision of the Secretary of State—who knoweth all things—we are asking that the Secretary of State should explore the possibility of some kind of independent assessment.

Let the Government reject our amendment, but let them defend what they propose. Whoever may or may not be present today, let the Minister's representative say why it is not reasonable for me to suggest that if they do not accept this amendment they are saying to the fire service, "You are either slaves or outlaws". I beg to move.

Lord Campbell of Alloway

My Lords, I wish to ask the noble Lord a question for clarification only. Does he agree that the amendment could not apply in an emergency situation such as a terrorist attack and that the problem is in the devil of the drafting of Clause 1?

8.45 p.m.

Lord McCarthy

My Lords, I accept what the noble Lord says about the devil of the drafting of Clause 1. He and I have crossed swords and yet we have agreed about the various defects in the drafting of Clause 1. The problem is that the Government will not say in Clause 1—and we have moved many amendments— what is and what is not an emergency situation. Sometimes when the absent Minister is present he says, "Well, of course, we do it in emergency situations only". Then he says that even the previous strike was not an emergency situation. So we do not know where we are.

The noble Lord is quite right. If there were a proper definition of what was an emergency situation, as against a situation where there is no definition, the problem would be easier to solve. Nevertheless, even within that context and even in the emergency situation, I do not see why, if the Government are aware of what is happening, they should not at that point allow for some form of independent assessment. After all, they are not committed to this. Our amendment commits them only to exploring the possibility of consulting ACAS. If one says, "Well, it is such an emergency situation that something has to be done", the noble Lord may be right.

However, I would argue that in 99 per cent of cases, if the Government know what is coming, if they have good intelligence, there is plenty of time before introducing this kind of extreme legislation to have some form of third party assessment.

Lord Wedderburn of Charlton

My Lords, I wholly agree with my noble friend in his moving of the amendment, but I am not sure I agree with him on the emergency point. The amendment is in connection with Clause 1(3). It applies to orders changing or modifying or fixing the conditions of service. If there is an emergency, it is terribly difficult to envisage that the Secretary of State will come forward with a desperate effort to change the conditions of service. In my understanding, the emergency point has been raised in connection with orders under Clause 1(1)(b).

My noble friend asks for third party assistance on the idea that there is a problem about emergencies on this amendment which relates to the situation where the Secretary of State proposes to change the conditions of service. And he is right.

Lord Evans of Temple Guiting

My Lords, I am unable to accept Amendment No. 18 in the name of my noble friend Lord McCarthy and other noble Lords for the same reason we were unable to accept Amendment No. 17 when the House sat on 18th September.

My noble friend Lord Rooker made it clear at Second Reading, in Grand Committee and again in the earlier stages of Report, that the powers in the Bill need to be used to draw a line under any future dispute.

The negotiating bodies have every right to enter into arbitration. It is written into the constitution of the NJC. Clause 1(3) allows the negotiating bodies an opportunity to scrutinise any order proposed by the Secretary of State, and the Secretary of State must consider their views before proceeding. However, to suggest that the negotiating body should then return to arbitration on this new issue is one bite of the cherry too far.

Amendment No. 18 would prolong any dispute with further arbitration. If the Secretary of State imposes that arbitration on the negotiating body while it is at loggerheads, it is unlikely to prove a helpful manoeuvre in progressing talks—not to mention the difficulty of deciding when the process of assistance has been exhausted. I must conclude that Amendment No. 18 would effectively prohibit the Secretary of State from making orders under Clause l(l)(a). As a result, I respectfully request noble Lords to withdraw their amendment.

Lord McCarthy

My Lords, if those are the kind of arguments that we are getting from the Government, I quite see why the noble Lord, Lord Rooker, is not here. The fact is that nobody will delay anything. It is up to the Secretary of State to decide when he wants to use his powers. Constitutionally, in terms of what is in the agreement between the union and the employer— about which the Government have made great play— arbitration operates before the Secretary of State issues an order. I would be very happy if the Government interrupted me and said that I was wrong, and that they are committed to a situation in which the Secretary of State could issue an order but it would be shelved immediately and he would wait if a party wished to try third-party dispute resolution. I do not think that they will say that. None of us believes so.

By the time the Secretary of State finally screwed up his courage and decided to issue one of his orders—I admit that he would be reluctant to do so, as it is a very dangerous and stupid thing to do—he would want to get it over very quickly. He would not want third-party dispute resolution. In particular, he would not want independent assessment—I stress the words "independent assessment". I do not believe that we would get arbitration in that context. I do not even know whether I would want arbitration in that context; I want a shaft of light.

I have spent a long time mucking about with third-party dispute resolution. One thing has come through to me: as the late Hugh Clegg said, if they ask for us they do not know what they want, and we do not know what they need anyway but, by God, we will find out. That is the heart of third-party dispute resolution. The parties come because they are in a mess and both sides have exaggerated. The Government and employers have exaggerated the benefits of the settlement, and the unions have exaggerated the justifiability of their claims. Someone must sort out such disputes.

I am not asking for arbitration; I am saying that it is sensible. If the Secretary of State reached the stage where he was forced to use those powers, I would feel sorry for him. It is essential to have a little conciliation and mediation at the point where he puts forward his proposals and finally decides how it will be, poor man. Independent assessment would be extremely useful for him, and it would provide elementary justice for the workers concerned.

I am not going to get anywhere tonight, so with great respect I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Hanham

moved Amendment No. 19: Page 2, line 22, leave out "two years" and insert "eighteen months The noble Baroness said: My Lords, I moved this amendment in Committee. I am well aware that the sunset clause was inserted into the Bill during the proceedings in the other place. The sunset clause provides two years. I cannot imagine that, at that stage, any one had the slightest idea how long this Bill was going to be on the Floor of this House. Indeed, they might have had other thoughts had they known. However the period of two years that was inserted in the other place will be quite a long time considering when this Bill finally receives Royal Assent. The Bill is designed to deal with one specific set of purposes only—the current dispute. Although I appreciate that there is a timetable for this dispute to be finally resolved, two years could be reduced to 18 months. Therefore, I beg to move.

Lord Campbell of Alloway

My Lords, I support this amendment. Eighteen months appears to be wholly apt for a temporary emergency measure that the Government do not wish to use—I am quoting from what they have said—save in a state of emergency that applies when there is no state of emergency to impose conditions of service by decree unless Clause 1—the devil of it—is amended. It is not a good Bill, so the shorter its life the better.

Lord Evans of Temple Guiting

My Lords, as we have heard, Amendment No. 19 is intended to shorten the sunset clause period from two years to eighteen months. The other place decided on the two-year period for reasons that, despite the time that has passed since that amendment was made, are still valid, and which I will reiterate here.

A time limit of 18 months would last until about March 2005, which sounds a long time away. It would probably be sufficient time for any Bill introduced next Session to implement White Paper policies to receive Royal Assent, although if the parliamentary passage of such a Bill were prolonged, that could not be guaranteed. However, even if the new legislation were in place, the changes on the ground that it would instigate would not take place overnight. It makes sense to have a two-year period so that we can ensure that the modernisation agenda is well under way before the powers in the current Bill lapse. We would rightly be open to criticism from this House if, in 18 months time, we found ourselves facing further disruption and frustration, but arbitrarily, without the powers in this Bill.

A two-year time limit gives greater certainty. The Government consider a two-year limit to be the right period of time. I hope, therefore, that the noble Baroness will withdraw her amendment.

Lord Wedderburn of Charlton

My Lords, before my noble friend sits down, I followed his explanation and I appreciate all that he says about the programme, but why did the Government not include the sunset clause at the beginning? Were there other reasons for accepting it, or is the Minister's explanation the reason for having second thoughts?

Lord Evans of Temple Guiting

My Lords, the explanation that I have given is the reason why the Government accepted the sunset clause.

Baroness Hanham

My Lords, I remain dismayed at the Minister's response, as I was before. From what he said I can only assume that there will be another fire services Bill in the Queen's Speech because, after all, we have had only the White Paper so far. What has been said confirms that we will be reconsidering the fire service once the Queen has made her pronouncements of the Government's future programme.

The sunset clause is still too long. I do not necessarily agree with the Minister about the need to keep it going until a further fire services Bill has been passed, for all the reasons that we outlined at an earlier stage in our deliberations—to which we will no doubt return later. We have concerns about the Bill in its entirety, so the less time that it is on the statute book the better. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

9 p.m.

Baroness Turner of Camden

moved Amendment No. 20:

Page 2, line 24, at end insert— (7A) Except where one of the conditions in subsection (7B) applies, an order made under this section which has not previously been revoked shall automatically lapse on the day after three months have elapsed from the end of that two year period. (7B) The conditions are—

  1. (a) where an order made under subsection (l)(a) sets or modifies conditions of service to be more favourable than the conditions previously applying for any fire brigade member and do not reduce the pay and allowances payable to any person, or
  2. (b) where an order has given directions under subsection (l)(b) which the Secretary of State, after consultation under subsections (3) and (4) above, declares before that day to be necessary for the reasons which he states."
The noble Baroness said: My Lords, in Grand Committee, my noble friend Lord Wedderburn of Charlton tabled an amendment the object of which was to ensure that, when the sunset clause operated, an order made under the provisions of the Bill that had not previously been revoked would lapse automatically.

As my noble friend explained then, it is not much good if the Bill, if it is an Act, automatically ceases to exist, if orders made under it are allowed to continue. The amendment that we tabled in Grand Committee suggested an automatic lapse date after three months. As my noble friend said, we were not wedded to three months, but we thought that some time limit should be put on orders.

In the debate that followed, the noble Lord, Lord Evans of Temple Guiting, whom I am pleased to see on the Front Bench this evening, pointed out that it might not be a good idea for all orders automatically to lapse. What if pay rates had been raised, equipment moved or property sold? There were many changes that no one would want to reverse.

We accepted that there was validity in that argument, so we have come back on Report with a different amendment. We are again seeking a time limit on orders made under the Bill, but we stipulate that it should not have the effect of reducing pay and allowances made to any person nor apply to any order that the Secretary of State, after appropriate consultation, declares before that day to be necessary for reasons that he will state.

I hope that the Minister will feel that there is merit in what we are trying to do. We accept that the Bill is an interim measure and that that is guaranteed by the sunset clause. However, we want to make sure that orders made under it will also lapse after three months, except in the situations provided for in our altered amendment and referred to by the Minister in Grand Committee. After all, that is what discussions in Committee are meant for. We listened to the arguments made by the Minister, and we have taken them on board and tried to meet them with this amendment. I hope that it will be acceptable to my Front Bench. I beg to move.

Lord Campbell of Alloway

My Lords, I would accept the amendment if it were limited to a situation other than an emergency situation. However, because of the drafting of Clause 1, that cannot be. Therefore, I oppose it.

Lord Wedderburn of Charlton

My Lords, I am glad that my noble friend has pressed the amendment on the Government. It removes the farce about the semantics of the sunset clause. It has become a tradition to discuss the Bill after sunset and well into the night. Tonight, we have to do without the king of Denmark. I do not know whether that is because, Something is rotten in the state of Denmark". There is something farcical about a Bill that says that it has a sunset clause but allows the Secretary of State, if he wishes, to make orders just as "rosy-fingered dawn" appears for the first time and to continue with whatever conditions and declarations he wishes to make with regard to fire authorities. Such orders will not cease to have effect unless he chooses to revoke them. The Bill is not a Bill with a sunset clause; it is a legislative phoenix that the Secretary of State has the power to make rise from its ashes at any point before the period of two years ends.

My noble friend was right: the arguments made against our amendment in Grand Committee are dealt with in the second part of this amendment. I press that on whomever is to speak for the Government. They were the only reasons given. If there are further reasons, no doubt we shall hear them. This amendment covers what was argued against it: namely, first, that the firefighters might have been given by order different and better conditions of service, which we did not want to take away. That is dealt with by the amendment. Secondly, there might be some important directions to fire authorities which must continue because of the serious, if not emergency, situation that would be created without those directions being fulfilled. That is dealt with by the amendment.

What else do the Government want? Do they want to continue the life of the Bill in a different form for ever under orders which never cease unless the Secretary of State decides to revoke them? It is not reasonable to demand that. Clearly, the spirit of the amendment should be accepted. If the Government do not like the wording, they should tell us that they will come back at Third Reading with something more appropriate.

Lord Bassam of Brighton

My Lords, first, when we discussed some of these issues at an earlier stage, it was clear that we had gone with the notion of a sunset clause to demonstrate our good faith in respect of the arguments raised.

I turn now to Amendment No. 20, which I acknowledge responds to earlier debates on the issue. Ultimately, it is not right or appropriate to limit the consequences of orders made under the Bill in this way for the following reason. Paragraph (b) of Amendment No. 20 does not seem to achieve anything other than to add more bureaucracy since the Secretary of State can simply declare that orders about properly and facilities are necessary. If he believes it to be the case, he could declare that they are all necessary.

It is also unclear what effect the proposed amendment would have on orders made under the Bill. It does not follow that if an order lapses the changes that have taken place as a result of it must be changed back to the previous position. That would result in uncertainty and, potentially, a degree of chaos. If an order lapses, it would result in preventing changes that have not yet been implemented from taking place.

The amendment places too great a restriction on the powers of the Secretary of State to allow orders made to lapse arbitrarily. It is for that reason that we cannot accept the principle behind this proposition. I therefore invite the noble Baroness to withdraw the amendment.

Baroness Turner of Camden

My Lords, I am rather disappointed with that response, as I am sure my noble friend understands. He said clearly that the reason the amendment is not acceptable is that it would place restrictions on the Secretary of State's powers under the Bill. That, precisely, is the real reason; namely, that the Secretary of State wants to maintain powers to do what he likes without any accountability. I find that quite unacceptable. We shall need to think carefully before Third Reading.

It is unacceptable that there could be a situation in which the Act would lapse, but orders—no matter what they were like or however unacceptable they may be in the long run—would continue to exist even though the Act no longer existed. I cannot understand how that can be justified, particularly when we have tried very hard to meet the points made by the Minister when we raised this issue in Grand Committee. Of course, I shall withdraw the amendment at this time in the evening. But I am very unhappy and give notice that I shall consider what has been said because I think that we should return to this issue at Third Reading. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Deputy Speaker (Lord Lyell)

My Lords, I advise the House that if Amendment No. 21 is accepted, I would not be able to call Amendment No. 22 because of pre-emption.

Baroness Hanham

moved Amendment No. 21: Page 2, line 25, leave out subsection (8) and insert— ( ) No order shall be made under this section unless a draft of the order has been laid before, and approved by resolution of, both Houses of Parliament. The noble Baroness said: My Lords, we return again to a matter which we have discussed, but I make no apology for bringing it back. We have talked at length about the purposes and use of this Bill and it has become more apparent, as our lengthy debates have progressed, that it is possible that the Bill could be used either for an emergency or—as I think was the original intention—to draw the line under a dispute. In effect, that is what the Bill is largely all about.

It has also become clear that there will be time, if the Secretary of State decides to pursue an order, for at least some discussion and negotiation to take place on it. So this is not something that would go through in a matter of days. It is therefore not a matter that should be the subject of a negative resolution in this House. If the Secretary of State reaches the point where he needs to issue an order under this legislation then that is a very serious matter, one which should be debated in both Houses and not simply put forward for negative resolution. On that basis, I beg to move.

Lord Campbell of Alloway

My Lords, I intervene briefly once again to say that I would accept this amendment if it did not apply to an emergency situation, but under the Bill as drafted, it will do so. That would inhibit the requisite exercise of powers of the Secretary of State. Thus the same objection arises as that which I raised on Amendment No. 9.

Lord Bassam of Brighton

My Lords, two different propositions are contained in these amendments. Amendment No. 21 argues for an affirmative resolution, while Amendment No. 22 seeks a negative resolution. I shall deal with the amendments together because in a sense the kernel of the argument will be contained in my first series of points about affirmative resolution.

I know that we have been over these arguments in Grand Committee. We made it clear then, and the argument still stands, that the report published on 11th June—my birthday—by the Select Committee on Delegated Powers and Regulatory Reform considered the delegated powers contained in the Bill and found that the degree of parliamentary control over the exercise of each power was appropriate. Thus the expert body of your Lordships' House has made it plain that it has decided that the Government have got this right.

Perhaps I may quote from paragraph 15 of the report where it states that: We take the view that the delegation is appropriate. We also believe that the level of scrutiny is appropriate, taking into account, for example, that regulations governing conditions of service of the police are similarly subject to negative procedure. There is power under clause l(5)(a) to fix or modify pay or allowances retrospectively. But we note that under clause 1(6), retrospective reduction is not permitted, and that there is a 2-year 'sunset' at clause 1(7)". This matter has already been considered by the experts and they have deemed it appropriate.

Amendment No. 22 is slightly more tempered and extends the requirement for negative resolution of either House from an order made under subsection (l)(a) to orders made under subsection (l)(b) as well. Clause l(l)(b) allows the Secretary of State to direct fire authorities in the use and disposal of property and facilities. The main reason for subsection (l)(b) is, in the case of further strikes, to allow the Secretary of State to instruct the fire authorities to give the emergency fire cover access to whatever equipment they might need to protect human welfare, a reasonable proposition in itself.

In such a situation, we would need to move quickly and it would be unacceptable for the Secretary of State to make an order that could later be prayed against. That would lead to a chaotic situation which we cannot accept. For those reasons, we reject both the approaches set out in these amendments and I hope that the noble Baroness will feel able to withdraw her amendment.

9.15 p.m.

Lord Wedderburn of Charlton

My Lords, before my noble friend sits down, I understand his second argument—namely, that they could not possibly allow time for an order made under Clause l(l)(b)—which refers to giving directions to a fire authority—to be prayed against because it would be so urgent in an emergency. If that is so—I do not believe the Minister was here—why did his noble friend resist the amendment that tried to limit such orders to emergencies?

Lord Bassam of Brighton

My Lords, I was not here and I am not conversant with the argument used by my noble friend. Our concern is that we cannot have a parliamentary procedure put in place by amendment. That would create a situation of chaos. I have made it quite clear in responding to the amendments today that that is the case. That is why we do not believe either of these amendments is right. The Delegated Powers and Regulatory Reform Committee—this is the important point—does not believe they are right either. It takes the view, as do we, that we have got the parliamentary process absolutely spot on for this particular procedure.

Lord Wedderburn of Charlton

My Lords, with respect to my noble friend, was not that point made by the Committee on orders under Clause 1(1)(a), which is what the Bill is about? That is what it was dealing with. The Minister dealt with orders under Clause 1(1)(b) and said they would only occur in an emergency. Why does he not put that in the Bill?

Baroness Hanham

My Lords, I wish to make it clear that I moved only Amendment No. 21.1 am not sure whether Amendment No. 22 will be moved but, as I have been challenged to do so by the Minister, I shall respond on my Amendment No. 21.

I am aware that the Delegated Powers and Regulatory Reform Committee agreed that this should be done under the negative resolution, but I am not sure that it was aware of any of the debate that had taken place in the House. It would clearly have understood what the Bill is all about, but quite a lot has been teased out during the course of the Bill as to the amount of time that would be available if the Bill ever had to be used, either in an emergency situation or in a "drawing the line under" situation. I am not aware whether the House can adjust the timescale so that it could discuss a resolution if it was necessarily put forward.

The Bill requires further consideration. That is the reason for bringing forward the amendment. I hear what the Minister says. For the time being, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Wedderburn

of Charlton moved Amendment No. 22: Page 2, line 25, leave out "that makes provision authorised by subsection (l)(a) The noble Lord said: My Lords, as the previous amendment was not passed, it is possible for me to move Amendment No. 22. To be fair, my noble friend Lord Bassam was not present at the previous discussions of this issue in Grand Committee and, indeed, on Report. I am not sure whether he is very well acquainted with the arguments and I wonder whether I should formally move Amendment No. 22 in order to give him the opportunity of adding to his response in regard to orders under Clause 1(1)(b).

He said the orders would only be needed in an emergency and that that is the reason why we could not even have a debate in which they could be prayed against. Can he tell the House the shortest possible notice time for a prayer against such an order? My understanding is that it is very short indeed. I move the amendment simply to give him an opportunity to reply. I do not want to take him by surprise. He has had time to think about it. Can he tell the House why the amendment should not be accepted? I beg to move.

Lord Campbell of Alloway

My Lords, in fairness, the noble Lord, Lord Bassam, could be unfairly confused on this. It is perfectly plain from the drafting of the Bill that Clause 1(1)(b) can be used either in an emergency or when there is not an emergency. I do not wish to say anything about the merits of the amendment; I wish merely to put the record right as a matter of the construction of the Bill.

Lord Bassam of Brighton

My Lords, it will come as no great surprise that I do not have a great deal further to add to the remarks that I put on the record earlier. I am grateful to the noble Lord, Lord Campbell of Alloway, for his intervention, which I saw as helpful.

I believed that I had made it plain that the legislation would not be used only in emergency; it might be used in a strike in which fire authorities must respond to emergencies. That is different in nature to being in a declared state of emergency. Parliament has, in any event, 40 days to pray against a negative resolution order. My point earlier was that that would be an unacceptable fetter on the ability of the Secretary of State to act, and could lead to a chaotic situation.

I have nothing further that I need to add to clarify the situation. If the noble Lord, Lord Wedderburn, is unhappy with what has been said, he has the opportunity to come back at a later stage of the Bill's consideration. Having heard that, I hope that he feels content to withdraw his amendment today.

Lord Wedderburn of Charlton

My Lords, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord McCarthy

moved Amendment No. 23: Page 2, line 27, at end insert— (8A) In determining what it is appropriate to include in any order under this section and what appears to him to be an appropriate negotiating body, the Secretary of State shall—

  1. (a) not require or take account of any composition, membership, representation, chairmanship or procedure other than that agreed by negotiation between the members;
  2. (b) shall have regard to relevant Conventions of the International Labour Organisation, the European Social Charter and instruments of the United Nations, binding on the United Kingdom; and
  3. (c) where a member of the negotiating body expresses to him reason to doubt whether an order is in terms that contravene any such Convention, the Charter or other such instrument, shall publish the grounds on which he believes the order does not involve any such contravention, and consult further with the members of that body."
The noble Lord said: My Lords, our debates are getting increasingly like a soap. Soaps keep going because nobody ever knows what anybody else ever says. People in soaps are astonished, because we have heard what has been said but they have not. So the soap staggers on. That is all right for soaps, but it does not do for this House.

I do not complain about the fact that the Minister is not here, but it is unfair on those he has left behind, who have not read all the stuff. I hope that they have read this stuff, because in discussing Amendment No. 23 I shall refer to issues that—I am afraid—we raised in Committee. The noble Lord, Lord Rooker, who was present on that occasion, gave a series of very unsatisfactory answers.

The amendment is doing three very simple things. From the White Paper, we know that the Government are going to introduce very substantial changes in the organisation, functions and role of the fire service. They are going to determine the composition of the negotiating body in respect of what is agreed between parties; they are going to revolutionise that. The amendment is saying that they should respect from hereon in what is called in the world of industrial relations the principle of mutuality. That principle means that people respect each other and that they do not change things unilaterally—that they should mutually agree. In some ways, the most important principle in the principle of mutuality is that each side decides who represents them. Employers pick their representatives, unions pick theirs, and nobody says, "I don't like Charlie Farnesbarnes". That is an attack on the principle of mutuality—the fundamental principle that the parties select their representatives.

We say that in determining the composition of a negotiating body in future what has been agreed between the parties should be accepted and respected. No one should unilaterally suddenly demand that one of the parties do something contrary to what has been agreed. In doing that, people will be respecting the relevant conventions. If we had enough time and it was not this late hour of the night, I could recite many relevant conventions of the ILO, the European Social Charter and so on. If I did not recite all of them, my noble friend Lord Wedderburn of Charlton could recite many more. I refer in particular, as this is the way I have been brought up, to the principles and practices of ACAS, God save us. We should respect those relevant conventions and the principle of mutuality. The desire to tell the parties who they should have to represent them is contrary to many different international conventions, the European Social Charter and so on.

All we are saying in our amendment is that if you do these dreadful things, there may be a complaint on the part of one or other of the parties. We are quite open that it will probably be the union that complains if it is told that under the Government's proposals it cannot have its general secretary on the other side of the negotiating table because the Deputy Prime Minister does not like that, and that the Deputy Prime Minister or one of his minions will sit in the chair and conduct the negotiations. We are not saying that if someone complains about these appalling practices, the Government should not introduce them—we are being very modest tonight—but that they should publish their grounds for diverting from basic established principles and consult on these matters.

I have explained—perhaps I have to explain it to the Government Front Bench—why we are raising this issue at this time. I apologise to those who have heard the explanation before. We have reached this point because this amendment is a successor to Amendment No. 20 which we moved in Committee. Frankly, we were alarmed by the words of the Deputy Prime Minister when he introduced Our Fire and Rescue Service. He introduced that White Paper at the same time as the other place was passing the Bill. He said that it was a sensible package of reforms on industrial relations—I do not criticise the rest of the White Paper—in line with best ACAS practice. I hope that the Front Bench is listening because I want the Government to say—and if they do not say it tonight, I want them to say it subsequently—how they can defend the notion that ACAS would support any part of this nonsense. I have read everything that ACAS has published on this subject and I tell you now that there is nothing that ACAS has ever published which supports one tittle of what the Government propose to do.

I shall go on asking the Government, if I have to use Question Time to do so, to justify why they dare not say to me that ACAS ever supports any of this nonsense. I must quote the White Paper. It states between paragraphs 7.9 and 7.12–1 quote selectively but I am prepared to quote even more if the Government wish—that, negotiations cannot be conducted effectively by large teams and that in the fire service the teams are too large. Therefore, the size of the teams of worker representatives needs to be reduced. Paragraph 7.13 states: We envisage three separate negotiating bodies covering different groups within the present grading structure: Chief Fire Officers … middle management; and fire fighters". I say now that a statement of that kind is intended to derecognise and to change the recognition basis of the industry. That would very easily form the basis of a successful appeal to the body which the Labour government introduced to look at attempts at derecognition. But this is an attempt at derecognition coming from the Government themselves.

Paragraph 7.12 states that the Government, will take power to determine the number, composition and chairing of the negotiating body or bodies". Quite frankly—I find it difficult even to say this, it is so monstrous—Mrs Thatcher never reached that point. Paragraph 7.13 goes on to state: The composition and chair of each body would be determined by the Deputy Prime Minister". However, he is not even a party to the system. It continues: The arrangement for non-uniformed staff would continue as now". One might think that he has gone as far as he could possibly go, but that is not so. On the principle of mutuality, paragraph 7.13 states: We see no prospect of such changes being made by agreement. That is why we intend to specify who should be involved". I have never known any employer to say in advance of negotiations that they see no prospect of agreement and therefore to say, before negotiations even begin, how it is going to be. Of course, the Government can do that. They say, "We will pass a law".

I find that absolutely monstrous. I am ashamed that my party puts such things in a White Paper. We say that such a policy is contrary to ILO conventions, including Conventions 87, 88, 98 and 151. Convention 88 states that the right of the worker's representatives to protection against this domination by employers must be maintained. But what is this proposal but the domination of the right of protection by the employer? What is this but the breach of that convention?

At one point, the European Social Charter states: those who are elected or appointed to be representatives should be those who are elected or appointed within the rules of their appropriate union". However, that is not what the Government are saying. The Government are saying that the Secretary of State will decide these matters. The Secretary of State will say, "I don't want you. I don't want you. I'll have the other fellow". I have never heard anything so monstrous in all my life.

Most absurd of all, the Government say—and I am glad that the noble Lord, Lord Rooker, is with us, because he actually said it; I do not have the actual quotation, but I will get it if he wants it—that the ACAS code supported what the Government are trying to do. I have here, and I will quote it if I have enough time, the 1970 code of practice, issued by a Conservative government. You will find nothing in the industrial relations code of practice that supports such barbarism.

I also have the latest ACAS advisory booklet, Representation at Work. I would quote from it extensively if it were not for the time of night. Nothing in that code of practice supports what the Government are trying to do. I find it very difficult to believe that the Deputy Prime Minister—with his experience, background and origins—knows, understands and appreciates what is being suggested in his name.

9.30 p.m.

Lord Campbell of Alloway

My Lords, we are sort of banging on a bit. I wonder, with the greatest respect, what is the relevance of these various codes of practice to an emergency measures Bill of some 18 months' or two years' duration? What is the relevance?

Lord McCarthy

My Lords, I may not be allowed to say this, and I say it very reluctantly, but the noble Lord is in danger of having "emergency" on the brain. I am not necessarily talking about an emergency. I am talking about what the Government propose to do to the fire service.

The noble Lord intervenes at a very convenient moment. I was told something by the noble Lord, Lord Rooker, which is in some ways similar to what the noble Lord, Lord Campbell of Alloway, has just said. He said two things. First, he said that he could not answer my concerns because there was no power in the Bill to impose these things by the force of law, so we could not discuss it. I cannot see why we cannot discuss matters that cannot be imposed by the force of law, but never mind. That is what he said.

I am quite prepared to admit that we have made mistakes in this debate. Unfortunately, we fell into a debate about whether the things that I am complaining about, which are in the White Paper, could or could not be introduced through the powers in the Bill. Quite frankly, I do not know the answer to that. In a sense, it is not my central concern. My central concern is that this is being advanced as government policy and that there are many ways, without using this Bill, to enforce such things. The fact that the Government announce policies of this kind can dominate the negotiation process.

Secondly, the noble Lord, Lord Rooker, said that, rather than comment on the violation of conventions and so on, he would cite ACAS. Well, I have said what I think about ACAS. What will happen in the fire service—and I know that it is going on now—is negotiations on the future stages of the 2003 agreement. It is possible—in fact, it is likely—that by 7th November another 7 per cent increase will be linked to the new role structure. If that role structure is not agreed, there will not be a 7 per cent increase. By July 2004, another 4.2 per cent will be linked to further changes in industrial behaviour, and so on. All these sums of money are contingent on the verification by the Audit Commission of certain savings.

Without talking about whether the Secretary of State could impose the new structure through this Bill or would have to wait for a new Bill, he could, at any point, say that he was not satisfied that sufficient advance had been made. He could say that he was not satisfied that he could pay 11.2 per cent, that the figure could not be higher than 7 per cent, and he would produce an order based on this legislation. At that moment, what is in the White Paper would affect the Bill.

The Government ought to tell us what they intend. Do they intend, in the current negotiations, to threaten the unions with the possibility that if they do not agree, they will get a big, big Bill which will force these monstrous things on them? Or do they intend as the noble Lord, Lord Rooker, said at one stage, to keep them in the background and not mention them although we all know that they are there? That seems to me a pretty daft way of carrying on.

Once the union reads the White Paper and knows what is in the Government's mind, there cannot be what any reasonable man would call negotiations about the future of the fire service. The Government must begin by going back—reversing, getting out their reverse gear, coming out of the garage—and changing their policy. I beg to move.

Lord Wedderburn of Charlton

My Lords, I support my noble friend. Everything he said, it would be difficult to deny. In view of some of the glances of the 10 people in the Chamber, I wish to say that I am sorry that we are forced to rise on such matters at this hour. No doubt the authorities will note that it is now 20 minutes to 10 o'clock and we are debating a matter of grave importance in international and domestic law.

I wish to make three main points. Knowing that it is the Government's policy to take control of the composition, chairmanship and procedures of the National Joint Council—or national joint councils, as they will impose—we say in the amendment that that is not something that they should take into account in making the orders. The burden of proof on us, therefore, is not to prove that the orders could impose those new requirements.

The noble Lord, Lord Rooker, in his reply in Grand Committee made a bad point in saying that it would be impossible for an order on terms and conditions of service to make provisions that affected the procedures and composition of the National Joint Council. He said that that was because it was no concern of the contract of employment of a firefighter what happened at the level of the National Joint Council. He asked to be shown where it was written in the contract of employment, overlooking the rather elementary point that a major part of most contracts of employment today consists of terms implied from other documents and procedures. It may be works rules, collective arrangements or collective agreements, which take their legal effect by incorporation, often impliedly, into the employment contract. If that were not so, workers would not have dozens of rights that are implied, and indeed dozens of obligations that are also implied.

The courts have recognised the extensive rights of workers to have the machinery of such joint negotiating bodies considered as part of their contract of employment obligations and rights. I even dare to quote two authorities on the point. They were not quoted in Grand Committee. Therefore, I am obliged to quote them, so that they be on the record, which is all that we shall get tonight.

Lord Campbell of Alloway

My Lords—

Lord Wedderburn of Charlton

My Lords, I would like to finish my point before I give way. The first authority is City and Hackney Health Authority v NUPE and Craig in 1985, where rights stemming from a Whitley Council for ancillary staff and their procedures were incorporated impliedly into the contract of employment of a worker. I will refrain from quoting, as I must, what Lord Justice Oliver says until after the noble Lord has insisted on intervening.

Lord Campbell of Alloway

My Lords, I beg to move that the Question be now put. It is a fallen Motion.

Lord Wedderburn of Charlton

My Lords, that is a debatable Motion, and I will debate it by continuing with my advocation of the amendment, if that is permitted.

The Deputy Speaker

My Lords, does the noble Lord wish to put the Question? I understand that it is a serious Motion to put before the House.

Lord Campbell of Alloway

My Lords, we have had long enough on this debate. The matters have been considered on previous occasions. We are drifting into an attack on government policy. I am wholly delighted to attack it on other occasions, but at this hour of night and in this context, no. I beg to move that the Question be now put.

The Deputy Speaker

My Lords, I am instructed by the order of the House to say that the Motion that the Question be now put is considered to be a most exceptional procedure, and that the House will not accept it, save in circumstances in which it is felt to be the only means of ensuring the proper conduct of the Business of the House. Further, if a Member who seeks to move it persists in his attentions, the practice of the House is that the Question on the Motion is put without debate.

Lord Wedderburn of Charlton

My Lords, I wish to debate the Motion that the noble Lord, Lord Campbell of Alloway, has put, but by giving reason why there are new matters that the House and the Grand Committee before it has not yet heard. Those new matters are relevant to the rights of thousands of workers and, indeed, fire authority employers, and therefore it is quite irresponsible for the House to legislate without hearing what they are. If the noble Lord, Lord Campbell of Alloway, does not want to hear them, that is his private concern, but the concern of a legislature is to consider the matters that are relevant. I have two judicial authorities which do not support what the noble Lord, Lord Rooker, said in Grand Committee. I believe that my noble friend wants to interrupt me. If so, I am happy to be interrupted.

9.45 p.m.

Lord Grocott

My Lords, I want to say only that we are still discussing the amendment. I get the sense of the House that perhaps we can do so without it going on at inordinate length.

Lord Wedderburn of Charlton

My Lords, the length of the amendment is relevant to the importance of the matters under debate. My noble friend the Chief Whip is responsible for when the business comes on in your Lordships' House. If he had put us on at five o'clock, we would have had plenty of time. And we have plenty of time for this debate—the night is young.

The second authority is Lee v GEC Plessy in 1993 where a group of workers was held to have employment rights about severance payments determined according to the correct procedures and arrangements in the collective agreements negotiated by their union in a sectoral joint council. I accept that there are limits to what can be taken into account as part of the employment contract, but it is wrong to suggest that the orders make under Clause 1(1)(a) of this Bill could not have provisions which affect the composition and procedures of the National Joint Council in so far as it is part of the entitlements of fire fighters, workers, employees in the industry. Therefore, that major plank in the argument of the noble Lord, Lord Rooker, put in Grand Committee is, with the greatest respect in my submission, wrong.

The second point is that my noble friend Lord McCarthy was absolutely right in stating that under Conventions 87 and 151 of the ILO and under the European Social Charter, the rights of employees to nominate their own representatives without something equivalent to Mussolini's Carta del Lavoro being imposed on the structure of their joint procedures is plainly part of international law.

I must say not only to the Government but to the Opposition that the exposure in Grand Committee that the Opposition, too, were not disposed to argue vigorously for the defence of these international legal documents, to which Britain is a party, was a matter of great surprise to me and deserves a little more elaboration by a party which now is beginning to set its policies at its conference.

Thirdly, it must be restated—as was stated in Grand Committee—that your Lordships' Joint Committee on Human Rights made it quite clear that because the powers to make orders are so widely drawn under the Bill there is the possibility that orders under the Bill will infringe both the ILO Convention 151, Article 8, and the European Social Charter, Article 6. It would not be thought right for me to read out the passages from the committee's report because, contrary to our choice, the matter has been brought on when everyone is dozing and swapping jokes. But firefighters are not swapping jokes about this. Nor are other workers who fear that such an approach to public services is in the thinking of those who are putting forward the powers in the Bill.

Therefore, the amendment provides, first, that in making orders the Secretary of State should not, take account of composition, membership, representation, chairmanship or procedure", of national joint councils; and, secondly, that he, shall have regard to the relevant Conventions", of the ILO, the Social Charter and other instruments of the United Nations that are well-known—and well-known even in government. If a member of the negotiating body believes that there is a problem in regard to our international legal obligations, he can call upon him to explain why an apparent breach of the international conventions and documents appears to have been made in the order.

What is unreasonable about that? The Secretary of State must consider international law; he must refrain from pressing his policy on the composition of the National Joint Council through use of the orders; and he must declare and explain any apparent breach of the international legal position. Why is that so unreasonable? But we know—it has been made clear tonight—that the Government are simply taking a position, having no reverse gear, and that they will be obdurate in the face of any amendment. One could table an amendment saying that the Benches in the Chamber were deep red and it seems that the Government would oppose it tonight.

If the Government do not have arguments better than those put forward in Grand Committee, they should accept the spirit of the amendment, accept that this type of provision should be placed on the face of the Bill, and make it clear that the fears of those who believe that orders may have some of the effects that have been mentioned are not justified.

Lord Evans of Temple Guiting

My Lords, in his first intervention, the noble Lord, Lord Campbell of Alloway, was absolutely correct. The proposals in the White Paper about reform of the NJC are not a matter for the Bill that we are discussing this evening. The White Paper and not the Bill proposes that we should take power to determine the number, composition and chairing of the negotiating body or bodies for England. However, we acknowledge that the agreement signed in June between the FBU and the employers recognises that the constitution of the NJC needs revision. The parties have agreed to consider that and are doing so at this moment. We welcome those developments and shall see what they produce before deciding whether to intervene.

The noble Lord, Lord McCarthy, must see that the Bill does not allow the Secretary of State to determine the number, composition and procedures of the current National Joint Council. It does, however, define "negotiating body", and one part of the definition indicates that the body must be constituted in accordance with what appear to the Secretary of State to be appropriate arrangements for the negotiation of conditions of service of fire brigade members.

The purpose of that part of the definition is so that the Secretary of State can be sure that the body is properly constituted and thus properly representative of both sides, with agreed procedures in place. The government view is that, while we have made clear in the White Paper that we believe that the NJC needs to be reformed, the current NJC meets the definition in the Bill and therefore that is the body that would fall to be consulted by the Secretary of State.

The second part of Amendment No. 23 requires that, in making an order, the Secretary of State shall have regard to relevant ILO conventions, the European Social Charter and UN instruments binding on the UK. However, where such conventions or agreements are binding on the UK, it goes without saying that any Minister making an order under the Bill would have to have regard to them. I do not believe it is generally helpful to add such requirements to the face of legislation.

Under the third limb of Amendment No. 23, if a member of the negotiating body expressed reason to doubt that an order did in fact comply, the Secretary of State would have to make clear how his proposals did not conflict with those instruments. We would certainly not expect the orders to conflict with the instruments, but we could not stand by if there were further breakdowns that threatened to lead to a resumption of industrial action. In addition, once again, for the millionth time, I draw noble Lords' attention to the fact that the powers in the Bill are time-limited to two years, and therefore this issue will not be around for ever. Having given those assurances, I respectfully ask the noble Lord to withdraw his amendment.

Lord McCarthy

My Lords, the Government are incapable of learning—totally incapable. At no time this evening, or in Committee, have the Government felt the need to answer issues raised in the White Paper or what the Government intend to do to the principle of mutuality. They have not said whether they are justified and, if they are justified, why they are justified. They have not said how they came to make those reactionary statements in the relatively unimportant White Paper. If they say things and cannot defend them, one wonders how far they want to go with this basic attack on the principles of collective bargaining.

The Government have nothing to say. They say, "It is not covered in this Bill" or "We cannot talk about it now". It has become a congenital disease. They cannot answer the question. Every time one asks what one believes is a very simple question that goes to the heart of what we are supposed to be about—for the millionth time, the Minister says—one does not receive an answer. It is dreadful; it is awful. It is killing this Government. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord McCarthy

moved Amendment No. 24: Page 2, line 29, at end insert "and that duty shall be owed to and enforceable by the Secretary of State The noble Lord said: My Lords, Amendment No. 24 will probably suffer the same fate. It is an amendment that we introduced previously. In our way we are trying to limit the enforceability of the orders. We say in the amendment that that enforceability, that duty, shall be owed to and enforceable by the Secretary of State", and by no one else. We say that partly because we believe it is a reasonable limit, but also to achieve clarity. As we go on, the chances of achieving clarity are tending to disappear.

As the noble Lord, Lord Rooker, pointed out in Committee, Clause 1 (9) states: It shall be the duty of a fire authority to comply". My noble friend Lord Wedderburn asked in Committee what happens if they do not comply; what happens if it is not their fault that they do not comply because they are prevented from complying and, in particular, they are prevented from complying by the actions of the union or the actions of the members of that union? As I said on the previous amendment, we have not had an answer to that question. Who can sue? Who can obtain enforcement? Is it to be the Secretary of State, as we suggest, and only the Secretary of State, or could an authority that felt that it was prevented by industrial action seek to enforce it; or could an injured third party take action? If action were taken, what action would be justified? Could an interim injunction be acquired, considering the easy way in which interim injunctions can now be granted?

That deals with the union and the organisation, but what about the workers? I have tried to make this point before. I have asked this question not a million times, but six or seven times. What is the position of the worker who is dismissed? He or she frustrates the order and as a result the employer sacks him or her. Is that a fair dismissal? Is there some other substantial reason. If the matter goes to a tribunal, if the union defends the person and says that after all it is all right because it is just a breach of contract, and if the employer says to his lawyer, "Oh, no, it is not just a breach of contract; he has frustrated a statutory order and that is not protected", how should the chairman of the tribunal advise the side members? Can the Government help? No. I cannot get a word out of the Government. I do not think they know. They have blundered into this thing.

When we asked for elaboration the Minister took the view that the only way the issue could be clear is if he did not elaborate. Ignorance was bliss. He said: Clause 1(9) is one of the shortest subsections in the clause. The fewer the words, the less likely they are to be confusing. It is fairly clear that there is a duty on [an authority] to comply with a direction. The amendment would mean that only the Secretary of State could bring such an action". That is right. That is what we want. I say without qualification that the Secretary of State is very likely to have a big interest in enforcing such an order. It would be the Secretary of State who decided to use the power to determine the terms of the direction. If there is good reason to make the direction or order, there is a hell of a good reason to ensure that it is enforced. It goes without saying that the Secretary of State certainly would have that keen interest". We thought at that point that the Minister was saying that it was primarily a job for the Secretary of State, and that if anyone wanted the order enforced and felt that he was being damaged by the frustration of the order, he could go to the Secretary of State and say, "take action". But, no, he went on: On the other hand, if one takes not much of a leap of imagination, one would realise that others might"— not will— have an interest in enforcing such orders. The order could be, for example, that one fire authority is required to make facilities available to another fire authority. That other fire authority—the other body— might want to enforce that. It would be entirely up to it if that were the case".—[Official Report, 7/7/03; col. GC38–39] The Minister does not mention at any point the union, or what would happen if the fire authority went against the union. It is all being done in terms of the employer.

It would be very odd, would it not, if the Government were intentionally legislating and enforcing the order entirely against employers, so that the worker would be free? Noble Lords in the Opposition—if they pay attention, thank you—would undoubtedly, as they did, say, "This is a daft Bill. It leans on the employer but the worker is scot-free. You pass this Bill and the worker can go on striking in exactly the same way. His right to strike is exactly what it was before". That is what the Opposition said in the other place.

The Government said, "Don't worry about that. We will tell about that in the White Paper". There is not a word about it in the White Paper. So I ask the Government today: are you really saying that this enforcement is entirely and absolutely on the employer? The trouble is that you do not say; but please do say if you do not agree with our amendment. If you think that someone other than the Secretary of State has power to enforce this order, say who they are; say how they will do it; say what the consequences will be; and say what the liabilities will be for the union and the union's members. I beg to move.

10 p.m.

Lord Wedderburn of Charlton

My Lords, as my noble friend Lord McCarthy has indicated, the amendment has more than a narrow procedural ambit. It goes to the root of how the Government see the statutory duties created by this Bill.

The fire authorities have told us one thing. Clause 1(9) states: It shall be the duty of a fire authority to comply with a direction … in an order". If one thinks about a fire authority subject to an order which it does not like, an order perhaps about closure of fire stations or the removal of important and essential equipment from one place to another— Shooters Hill and Greenwich are always taken because that was a prize case which involved this issue under previous legislation—the person who can persuade the fire authority and say, "Don't be silly; you must do what the order and directions say you must do", is of course the Secretary of State. He controls the purse strings and will try to control the effect of his order with its statutory duty. If an employing fire authority fails to observe his Clause 1(1)(b) directions to reallocate the engines or close the stations, surely the primary responsibility of enforcing them should fall to the Secretary of State.

Under the law, if it comes to the crunch, the way to enforce such a statutory duty, because the Bill does not state that there can be any action for damages is, as my noble friend said, by injunction—and, if necessary, by interim injunction, which can be imposed in the courts at very short notice. We are saying, "All right; if that is the structure that the Government want to create, say so in the Bill. Don't say, as the noble Lord, Lord Rooker, said in Grand Committee, that lots of other people may have the right to bring action for injunctions". Why give rise to a flood of litigation in the middle of a tense situation? We say that it should be the Secretary of State, not Uncle Tom Cobbleigh, Harrods or "Disgusted of Tunbridge Wells", who has the right to move the High Court for an injunction.

Rather than let loose that misdirected flood of litigation—which may happen—there should be the same position as in the leading case that dominates the problems of this part of the Bill. We cited that case in Grand Committee and have never received any kind of comment from the Government: Meade v. Haringey Council in 1979, in Industrial Cases Reports page 509. The union brought out some of the personnel— caretakers and others—in Haringey schools, which was said to be a breach on the part of the education authority of its duty to keep schools open, because they had to close them. Who brought the action for the injunction? With no disrespect to him, he was a "Disgusted of Tunbridge Wells" figure, Dr. Meade.

The court said that Dr Meade: claims to be entitled to bring these proceedings in his own right as a parent who has suffered damage by reason of the closure of the schools. He also claims the right to bring these proceedings on behalf of other members of a body of 1,000 people who have formed themselves into an association called Haringey Schools Trust as well as on behalf of all the other parents of children attending or due to attend the defendants' schools as well as on behalf of all the ratepayers of Haringey". That is how you enforce a statutory duty if the Bill or Act does not make clear that the enforcement authority is more narrow.

In Grand Committee, it was suggested that it was an absurd new idea that an Act should confine the enforcement procedure to the Minister primarily responsible, having made the order. There is a clear set of precedents. One of them is legislation put on the statute book by the previous government in 1994 to restrict the right of prison officers to take industrial action. They had their right to take industrial action restricted by the Criminal Justice and Public Order Act 1994.

Section 127 of that Act states that if a person contravenes the section by inducing a prison officer to take action in contravention of his duty of service and obligations as a prison officer, that is a statutory tort— a breach of a statutory duty. But the section continues: The obligation not to contravene subsection (1) above shall be a duty owed to the Secretary of State". Subsection (3) makes clear that the duty is to be enforced by the Secretary of State.

I do not quote that section as a desirable precedent for restricting the rights of industrial action of prison officers, who are not exempted as a special group by the rights of association conventions of the ILO or any other international body. However, legislation which nobody objected to on any formal or substantial grounds, stating that only the Secretary of State could enforce the breach of a statutory duty, is on the statute book and can be found elsewhere. Why do the Government want to leave it obscure and indeed to imply that anyone who suffers damage by a breach of a statutory duty created by orders under the Bill can bring an action in the courts? What has brought about this sudden desire for a litigious creation in the Bill?

My noble friend has made the case clearly that it would be much better, as a matter of common sense— not of law, but of technique and common sense—to confine the right and power to enforce the statutory duties created by the Bill to the Secretary of State. That is all that the amendment seeks. I hope that the Government can begin to see some sense and to accept it.

Lord Evans of Temple Guiting

My Lords, I am unable to accept Amendment No. 24 for the following reasons. Clause 1(9) makes it a duty of a fire authority to comply with a direction. The amendment would provide that only the Secretary of State could bring an action before the courts to enforce that duty.

It is, of course, the Secretary of State who is likely to have the greatest interest in enforcing such an order. But, as my noble friend Lord Rooker explained in Grand Committee, it does not take a great deal of imagination to think of others who might have an interest in ensuring that a direction is acted on. For example, if a direction were to require one fire authority to make facilities available to another fire authority or some other body, that other fire authority or other body might want to enforce it. So I cannot support the noble Lord's attempt to prevent such action being taken. For that reason, I invite the noble Lord to withdraw his amendment.

Lord Wedderburn of Charlton

My Lords, before my noble friend sits down, he says that anyone who is likely to suffer damage from the breach of a statutory duty created by the Bill should have a right to bring action in the courts. Since inducement of a breach of a statutory duty is a parallel wrong, if not a more grievous one, to a breach of a statutory duty itself, he presumably applies the same logic to inducing a breach of statutory duty. He does not know.

Lord Evans of Temple Guiting

My Lords, this is Report stage.

Lord McCarthy

My Lords, I take it that the Minister is not going to reply to that point, and that I must decide what to do. Even if they do not accept our amendment—I know that they will not—I am sorry that the Government cannot explain why. I am not trying to be unfair, but I think that I am right in saying that virtually everything that the Minister said was said by the noble Lord, Lord Rooker, in Committee.

We are asking not only why the Government have not said in the Bill what the responsibilities are, and who they think will be able to enforce the Bill, but for an idea of how they think it will work, instead of throwing it to the courts. And they say nothing. They just say, "Oh well, the fundamental impetus will come from the Secretary of State, but an authority will have an interest in this" and then everything evaporates.

We still do not know whether it is the Government's intention—and, if so, the extent to which it is their intention—to extend the liability of workers in the industry and their union. It will all come out. Somebody will bring an action and we shall find out. But the Government do not advance in any way. Once again, therefore, I must beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

10.15 p.m.

Lord Wedderburn of Charlton

moved Amendment No. 25: Page 2, line 29, at end insert— (9A) An act done in contemplation or furtherance of a trade dispute which is not otherwise actionable in tort by reason of Part V of the Trade Union and Labour Relations (Consolidation) Act 1992 (c. 52) (industrial action), shall not be actionable in tort on the ground only—

  1. (a) that it constitutes a breach or contravention of, or non- compliance with, an order made under this Act, or
  2. (b) that it constitutes, or threatens, an inducement of, or agreement or combination to commit, any such act.
(9B) In subsection (9A) an "act" includes a deliberate failure to act. The noble Lord said: My Lords, this amendment follows directly on the debate that we have just had. Except for Third Reading, this is the last moment at which the impact of the Bill on the liberty of the union and its members to take industrial action can be tested. We know that the official Opposition do not think that the union should have any right to strike—that was confirmed in Grand Committee—so they must be very happy if they understand the Bill.

The Government say that they do not intend the Bill to have any effect on the right to take industrial action. However, there is a simple point that should give them pause and which is a problem for them in the face of that proposition. I can do no better than to put the point in the form of brief quotations from Lord Denning, then Master of the Rolls, in Meade v Haringey Borough Council [1979]—the case that I mentioned in relation to the last amendment and which always causes some merriment on the Government Front Bench because they know its title but not much about its content. In that case, the union had brought school caretakers out on strike, which caused a breach of statutory obligations of the local council under the Education Act.

Lord Denning said that there was a difference between inducing a breach of contract—which invariably takes place in industrial action and which, if there is a trade dispute and a ballot under the provisions of the 1992 Act is protected—and, on the other hand, an inducement of a breach of statutory duty, which, ballot or no ballot, trade dispute or no trade dispute, is not protected by the legislation on the statute book at the moment. Lord Denning said that the legislation, gives them [the union] immunity if they induce a person to break a contract. But it gives them no immunity if they induce a local authority to break its statutory duty". Replace the words "local authority" with "fire authority" and we have this case.

A paragraph later, Lord Denning said: There is another way of putting the case". Lord Denning invariably had another way of putting his case. He continued: Now seeing that it was a breach of statutory duty (for the schools to be closed) this agreement was nothing more nor less than an agreement to do an unlawful act, or at any rate to use unlawful means. Such an agreement, if it results in damage to anyone, is an actionable conspiracy", which, he explained, would also not be protected by legislation.

There has been some commentary on the judgment of Lord Denning on other matters relating to Meade v Haringey Borough Council, but I know of no other authority that has doubted those propositions of law, except the Government Front Bench. Their answer has invariably been that that is not their intention. It may not be their intention, but it is their Bill. Therefore, Amendment No. 25—in respect of which I also speak to Amendment No. 26—would ensure that it is made absolutely clear, once and for all, to cure any doubt— and there is not much doubt about the matter in the judgment of Lord Denning—that this new set of statutory duties, created by the Bill, however they are to be enforced, do not create an illegality that creates an obstacle to the legality of industrial action when there is a trade dispute and when there have been the necessary ballots and notice procedures under the 1992 Act.

There was some debate in Grand Committee about whether our amendments were properly drafted or caused doubt about creating a right to strike without ballots and without a trade dispute. These amendments do not allow any reasonable person to make that point. They make it clear that we are talking about industrial action that is protected under Part V of the 1992 Act or is not actionable under the 1992 Act because there is a ballot and because there is a trade dispute. Where those things are so, the union, having pursued all the necessary procedures and established the arguability of a trade dispute, should not suddenly confront a new illegality such as the illegality pronounced by Lord Denning and in other cases that were mentioned in Grand Committee and elsewhere, which, I hope, the Government have read by now. That illegality is inducing a breach of statutory duty. That is not covered by the legislation that protects the liberty and right to take strike action.

The Government must face the fact that, at the least, the Bill is ambiguous. They cannot deny that it creates statutory duties; we have just seen that they think that all statutory duties should be enforced by anyone who is likely to suffer damage or can establish an arguable case. I remind your Lordships that an interim injunction can be obtained from the High Court, where the balance of convenience and public interest is in favour of the claimant and his case in law is not proven but is only arguable, under the decision in American Cyanamid Co v Ethicon Ltd, which was decided by your Lordships' Judicial Committee in 1975.

In the face of that, how can the Government deny that there is the risk of a problem with a claimant who wishes to get—and, given a suitable brief, he has a chance of success—an injunction from the High Court against industrial action that can be said arguably— only arguably—to induce a breach of one or other of the statutory duties under the Bill? Of course, there may be an inducement to breach of contract, which would be protected, but there was a breach of contract protected with regard to the inducement of school caretakers in Meade v Haringey Borough Council. That was not enough to protect the union, although, in the discretion of the court, procedural problems came to the rescue in the end as regards the issue of an injunction for matters that are not relevant to the present argument. It was not enough because they had induced a breach of statutory duty.

The Government have already admitted that claimants all over the land, from Tunbridge Wells to Harwich, could bring an action in order to get an injunction to enforce the duties. As I said to the Minister—he did not answer because, I think, he could not—that obviously also applies to inducement to breach of statutory duty, as the Court of Appeal held in 1979 and as has been supported by decisions in the High Court and superior courts ever since.

That is the case for the amendment. That is why, if it is rejected, the Fire Brigades Union and other public service workers will have the greatest fear of the consequences of a train of thought that, so far, has dominated the obdurate resistance of the Government to facing that simple case. I beg to move.

Baroness Turner of Camden

My Lords, this is an important amendment, as I am sure our Front Bench appreciates. Throughout the passage of the Bill, we have been told by the Minister on a number of occasions that it is not the intention of the Government to interfere with the right of members to take collective industrial action. We accept that this is the Government's intention.

For us, the trouble is that it has never been clear in the Bill, which has overriding powers to impose statutory duties, and so on. As has been explained by my noble friends, this can mean that individuals taking action can lose immunities provided under existing legislation after following the appropriate method of conducting ballots and such like. The amendments spell out the law under which they can take legal action at the moment.

I suggest that my noble friends on the Front Bench give this issue very serious consideration. There is concern among trade unionists and, in particular, fire brigade members with whom we have been in contact, that they are in danger of losing their right to take collective action despite the Government repeatedly saying that that is not their intention. I hope that these amendments will be considered seriously.

Lord McCarthy

My Lords, I want to make one point. I am sorry to rise when the Government clearly want to finish the business. As I said in Committee, I am concerned with the position of the workers themselves. If an employer is unable to carry out the instructions of the Secretary of State because of the action of his employees, he may wish to sanction or threaten them in some way. Indeed, if the action continues and the employer thinks that it is their fault and he wants to defend his position, quite legitimately, he may dismiss the employees.

Is that lawful? Is it the Government's intention that in an industrial tribunal—because the union will fight the case—an employer could say, "This is not a breach of contract. This is a breach of a statutory duty."? Is it the Government's intention that it will be correct that it is a breach of a statutory duty and that, therefore, workers can be dismissed because it is a fair dismissal and is not protected? Or are the Government saying, "No. We hope that the chairman will disregard what the employer says. This is covered by existing legislation."? Or, worst of all, are the Government saying, "Wait and see. We are not going to tell you. Try it out. See if you can get away with it."? Which of those three positions do the Government believe in?

Lord Bassam of Brighton

My Lords, I am conscious that this is ground that has been covered extensively at earlier stages. I shall not therefore rehearse an argument with which I am sure the noble Lords and the noble Baroness are by now entirely familiar. The burden of these amendments remains—if I can put it in lay terms— to ensure that protection is afforded by the Trade Union and Labour Relations (Consolidation) Act 1992 to certain industrial disputes to cover breaches and contraventions of, or non-compliance with, orders made under the Bill. Inducement to act in any of these ways would be covered, as well as the actual acts or omissions themselves.

The long and short of our position is that we remain of the view that these amendments are unnecessary. We continue to believe that if a dispute arises about something dealt with in an order made under the Bill, the ordinary operation of trades union law will offer fire brigade members protection. It is not part of our intention—I repeat, it is not our intention—to offer less protection or, as the amendments might offer, more protection. That is not the case. That is not what we are seeking to establish.

The amendments could cause confusion for other public sector workers who carry out functions governed by legislation and whose working conditions may inadvertently change as a result of directions or other changes in law. This would single out the firefighters to be treated differently from other groups of workers, which, in our view, would be equally unfair.

We do not seek to do anything which is not already a fact in law. We do not believe that the Bill changes matters in the way that has been argued in your Lordships' House tonight. Furthermore, we think that the amendments are unnecessary and, in short, that they could cause additional confusion.

I understand the concerns expressed by noble Lords during this and our earlier debate, but we think that those concerns are misplaced and take us no further. I hope that noble Lords will feel a little reassured, although I suspect that they will not since they have not been greatly reassured by almost anything that has been said at the Dispatch Box this evening. However, they should be reassured and I hope that the amendment will be withdrawn.

Lord Wedderburn of Charlton

My Lords, we have heard some answers to some amendments, and I think that my noble friend Lord Bassam may take a prize. He made approximately four points.

He said first that the amendment was unnecessary because the Trade Union Labour Relations (Consolidation) Act 1992 already protects action by firefighters in a trade dispute—presumably he meant with a ballot. I have explained that it does not do so if it induces a breach of statutory duty. What is his answer to that? He did not say a word about statutory duties. Does he understand what a statutory duty is? Has he looked at any of the authorities which state that that is a wrong and is not protected by the legislation? So the first point was very odd.

The second point was the usual: "It is not our intention". This whinging cry from the Government that it is not their intention to do things under the Bill is one which the workers have heard and the unions have taken note of. They are not interested in statements of intention if they are not reflected in the law. The Government are responsible for the Bill, not their misunderstandings and intentions as to the law. They misunderstand and refuse to understand the point about statutory duty.

As for other public sector workers who inadvertently bring about changes in matters regulated by statute, my noble friend should take a look at the books. There are workers who can risk inducing breach of statutory obligations and they are specially dealt with. There is the possibility that such a liability can arise under the telecommunications legislation. I have already explained that it is possible that such a liability could arise under the legislation applying to prison officers. Those are all listed in the books and we do not find public sector workers in a special category whose legal right to take industrial action is limited by their obligations under statutes which create statutory duties. If the Minister has other illustrations perhaps he will rise and give them to noble Lords, but he has not. This is all claptrap which would not pass an entrance examination, let alone a first year paper.

There is such a thing as the wrong of inducing a breach of statutory duty that is not protected by the legislation on strikes. Tonight I have no alternative but to withdraw the amendment, but I tell my noble friends on the Front Bench, in all friendship, that they are making a ghastly mistake in putting this before the trade union movement. If they want to inflame the situation, they will go on with their obdurate failure to understand the simplest possible point. I do not know of any other simple English phrase that will explain it: inducing breach of contract is protected; inducing breach of statutory duty is not.

Undoubtedly we shall come back to these issues on Third Reading. It does not matter how many noble Lords go into the Lobby who have spent their time not in the debate, but in the bar or in their rooms, so long as the point is put to the legislature and history records whether they refuse to recognise this point. For tonight I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 26 not moved.]

Lord Campbell of Alloway

f his intention to move Amendment No. 27: ut Clause 1. The noble Lord said: My Lords, as yet, the Government have refused to accept amendments to Clause 1 which proscribe the exercise of powers by the Secretary of State to impose conditions of service by decree when there is no emergency situation, such as a terrorist attack or the immediate threat of such an attack, within the definition of Amendment No. 2, which was withdrawn on the first day of the Report stage. It is a bone of contention which arose on Second Reading. It has bedevilled the subsequent stages of the Bill and, indeed, some of my previous interventions today.

I do not understand why it is said that the noble Lord, Lord Rooker, has not made himself plain. I shall not quote references but, at columns 1157, 1158, 1165 and 1166 of Hansard on the second day on Report, he made the construction of Clause 1(1), which governs the exercise of powers by the Secretary of State, perfectly precise and clear. The purpose of the Bill is to enable a line to be drawn as a longstop—at any time in any future dispute— that could not be the subject of challenge, irrespective of whether or not there was an emergency situation.

The noble Lord, Lord Rooker, used the term "caveat". There was no need to do so. He has made his position totally plain. It is that position which goes to the essence of why we wish to amend Clause 1 and why, if those amendments are not accepted, to move that Clause 1 should not stand part of the Bill.

There is not an emergency situation today; there has not been one for some time. According to the noble Lord, Lord Rooker, excellent working arrangements with the union are going well and timetables have been agreed. When there is no such emergency, to seek to impose, or threaten to impose, conditions of service by decree, as a longstop to collective bargaining, is wholly unacceptable and could well provoke further disruptive industrial action. It would appear that the noble Lord, Lord Rooker, accepted on the first day on Report—I think with me—that the ghost of the withdrawal of services has now been laid, at all events in a state of emergency.

I have been advised to give notice that Amendments Nos. 2 and 4, as tabled on the first day on Report, are to be re-tabled on Third Reading. They will seek to limit the use of the powers under Clause 1 to impose, or to threaten to impose, conditions of service by decree only in a state of emergency, as defined, and will require consultation before introduction instructions are given to the fire authorities when there is no such state of emergency. If the amendments are not accepted, I have been advised to give notice that then, and only then, would the amendment to leave out Clause 1 be moved, and to explain that the other amendments to Clause 1—Amendments Nos. 3, 5, 6 and 7—which were withdrawn on day one of the Report stage, shall not be retabled on Third Reading. The House will face a clear-cut and straightforward issue. On that basis, I shall not move the amendment.

[Amendment No. 27 not moved.]

Clause 2 [Interpretation of June 2003 agreement]:

Baroness Turner of Camden

moved Amendment No. 28: Page 2, line 34, at end insert "and no order made under this Act shall seek to amend the operation or result of that agreement or of any such mediation, conciliation or arbitration The noble Baroness said: My Lords, in Grand Committee, the Government accepted an amendment moved by my noble friend Lord Lea to the effect that nothing in the Bill affects the possibility of the parties agreeing on a reference to mediation, conciliation or arbitration on the interpretation of the June 2003 agreement between the FBU and the local authority fire service employers. My noble friends and I were grateful to the Government for accepting the amendment, which envisaged the possibility of the resolution of any difficulties through third party intervention—that is, by means of mediation, conciliation or arbitration. That is the way in which union officials, of which I was once one myself, normally expect to deal with differences.

We believe that the inclusion of the clause goes some way to making the Bill slightly more acceptable. However, the overriding powers in the Bill still exist and have not been modified by the inclusion of the wording. There is very little point in having the right to go to arbitration, for example, underlined by including it in the Bill, if the powers that exist in the Bill can override whatever decision results from the arbitration. Unless the decision reached in arbitration is respected, it is simply a waste of everyone's time.

I am not sure that it is the Government's intention to ignore the result of arbitration, conciliation or mediation, but I am concerned with the wording of the Bill. As it stands, irrespective of what may be said on behalf of the Government today, it would be open to a Secretary of State simply to use the powers of the Bill without regard to any decision reached by external arbitration. The powers in the Act will be absolutely overriding.

That is unsatisfactory, so I hope that the Minister accepts that the arguments have some force. Even if the wording of our amendment is unacceptable, perhaps he could come up with something that meets our concerns before the Bill finally leaves the House. I beg to move.

Lord Evans of Temple Guiting

My Lords, Amendment No. 28 prohibits the Secretary of State from making orders that would alter any agreement reached by the parties through arbitration on the interpretation of the agreement signed on 13th June 2003. If the two sides in the NJC felt that they were getting into difficulty and sought mediation, conciliation or arbitration, we would encourage that. There are many areas where I am confident that if the two sides can come to an agreement, so there is no dispute between them, we would not want to intervene. However, it is a big step from that to say that, whatever the outcome, we may not intervene.

It would not be acceptable if agreements reached now flew in the face of what we are saying in the White Paper. It is not unreasonable that, if the arbitrator comes up with something quite different from published government policy, the Secretary of State should be able to intervene and stop things going off in the wrong direction. The Bill, of course, requires the Secretary of State to consult the negotiating body before he makes an order fixing or modifying conditions of service. The Secretary of State would doubtless take the views of the body into account before finalising his proposals. That would include any decisions made under arbitration. With that in mind, I ask the noble Baroness to withdraw her amendment.

10.45 p.m.

Baroness Turner of Camden

My Lords, we have been told this evening that the White Paper is relevant, but earlier we were advised that it was not relevant to the Bill. I have worked on the basis that we were not discussing the White Paper this evening.

Frankly, it is rather disappointing that the Minister was unable to accept what we are proposing. It is proposed because we are seeking to be helpful and to spell out in the Bill that it is worth going to arbitration as arbitration will actually mean something. What bothers us—and has bothered us throughout the discussion on the Bill—is the overriding nature of the powers in the Bill and the fact that it gives the impression that no matter what people want to do, finally the Secretary of State will have his say and that is it and there is no point in attempting to do anything at all about it. That is unacceptable except in an emergency. The Government have not been prepared to accept the amendments that we tabled to make it clear that the Bill had application only in emergency situations.

As the Bill now stands, if it leaves the House unamended, it will say to everyone, "Look, the Secretary of State can do what he wishes to do irrespective of whether there is an emergency or not. That is the overriding situation and that is it, finished". That is not at all acceptable. However, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 3 [Supplemental provisions]:

Lord Wedderburn of Charlton

moved Amendment No. 29: Page 2, line 38, after first "service"" insert "means terms and conditions of employment and The noble Lord said: My Lords, the object of this amendment is to define what is meant by "conditions of service" in the Bill. At the moment there is no definition of "conditions of service", merely an indication that they can include pay and hours.

Like all our amendments, this is an amendment which would be helpful to the Government, although their difficulty in appreciating the help that is offered them has already been made apparent this evening. The reason it is important that the Bill should define "conditions of service" as meaning terms and conditions of employment is that that would go a large way to making clear what is at the moment ambiguous; namely, that an order under Clause 1(1)(a) would operate so as to effect terms and conditions of employment in a contractual sense. Therefore, if there were any threat ever—I do not appreciate that there may be—to take action on the part of the workers concerned in opposition to such an order fixing conditions of service, it would at least be arguable that this was an inducement to break conditions of service, which meant terms and conditions under their contracts of employment.

The amendment would make it quite clear that at least the orders under Clause 1(1)(a) impose contractual conditions and not free-standing statutory duties. It would not do much for Clause 1(1)(b) orders but we have already seen that the Government do not seem to care about inducing a breach of those.

The right to strike would therefore pro tanto be protected in respect of the sort of dispute that the Government have usually described; namely, some dispute relating to an order fixing or modifying new conditions of service, and the Government would be free from the charge that they chose not to clarify the position and deliberately left the possibility that the effect of orders under Clause 1(1)(a)—as government spokesmen this evening appear always to accept— would operate as imposition directly of statutory duties. At least they would be rescued from that thicket by this amendment. I beg to move.

Lord Evans of Temple Guiting

My Lords, Amendment No. 29 inserts some additional words into the definition of "conditions of service". My noble friend moved a similar amendment in Grand Committee where he explained that the purpose of the amendment was to ensure that the duty of complying with an order about terms and conditions of service applied throughout the contract of employment.

The advantage he saw in this, as opposed to a statutory duty to comply, was that it would be quite clear for the purpose of the Trade Union and Labour Relations (Consolidation) Act 1992 that any breach of what the order required would be a breach of contract and not a breach of statute.

The Government's view is that fire brigade members will anyway be under a contractual duty to observe the conditions of service imposed by any order under Clause l(l)(a). As my noble friend Lord Rooker explained earlier, in discussing Amendment No. 11, any changes to terms and conditions of service introduced by such an order will become terms of the relevant contracts of employment. Failure to comply with them would be a breach of contract.

As I also said earlier, I do not favour making "just in case" amendments, which in our view this would be. However, I hope that with the assurance I have given about the way in which this would work, the noble Lord will feel able to withdraw the amendment.

Lord Wedderburn of Charlton

My Lords, we have it again. First, my noble friend from the Dispatch Box misstates what is in the Bill. The Bill does not have a definition of conditions of service. Clause 3(2) states: 'conditions of service' includes… pay and allowances, hours of duty or leave". That is not a definition; that is a statement of inclusion. There is a rather simple difference between that and an exclusive definition. The amendment offers the Government a definition to say what my noble friend has just said—to state the Government's intention in the Bill.

The Government seem to think that they make law by standing at the Dispatch Box. That is neither a democratic nor a justifiable view. Their intentions are not law. Their interpretations are not law. It is what is in the Bill and what goes on the statute book that is law. Unless they define conditions of service in the way that the amendment suggests, they cannot do other than leave ambiguous, at the very least, whether a court would hold that they are direct statutory obligations. We have explained this again and again, but all the Government do is say, "Well, that is not our intention". If it is not their intention, why do they not put it in the Bill? They do not put it in the Bill because they do not want to. That is why some of my more suspicious friends say, "If they do not want to, what are they up to?" What is the worth of these statements of intention if they will not shroud them with the majesty of law?

This will come up again on Third Reading, whether in this guise or another. That causes great merriment on the Government Front Bench. The Government have more merriment about their refusal to understand in this Bill than in any other legislation— even in the dread years of the 1980s—that I have experienced in this Chamber. Of course they are mainly newcomers to this Chamber, as was proved in Grand Committee. However, they are not newcomers to the law and to industrial relations, because they are legislating on it. Let them go away and think again. This is the nub of a major question about statutory duty and breach of contract. For the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Wedderburn of Charlton

moved Amendment No. 30: Page 3, line 9. at end insert— ( ) For the avoidance of doubt, section 244(2) of the Trade Union and Labour Relations (Consolidation) Act 1992 (c. 52) (meaning of "trade dispute" in Part V) is declared to apply to a case in which a dispute relates wholly or mainly to matters which are the subject of an order or proposals for an order made by the Secretary of State under this Act affecting the working conditions of members of a fire brigade. The noble Lord said: My Lords, Amendment No. 30 deals with a separate and very serious point that was vigorously debated in Grand Committee. It is important that I should put it on record now, on Report, since more people are likely to cast an eye over the pages of Report than were ever likely to look at Grand Committee. The advantage of having a Bill in Grand Committee for those who do not want anyone to understand what is going on is that no one ever reads that part of Hansard. So let us see what this is about.

There is a doubt, which this amendment attempts to cure, about whether Section 244(2)(b) of the 1992 Act applies in a case which might be a dispute between the Fire Brigades Union and the employers and the Minister in the sense that he has made an order of new conditions of service or to close down fire stations, and whether that is likely to be arguably a trade dispute.

The legal definition of a trade dispute is that it must be a dispute between workers and their employers. Section 244(2)(b), which this amendment would apply to the Bill, states: A dispute between a Minister of the Crown and any workers shall, notwithstanding that he is not the employer of those workers, be treated as a dispute between workers and their employer if the dispute relates to matters which… (b) cannot be settled without him exercising a power conferred on him by or under an enactment". The Secretary of State could propose or make an order under the Bill when it is enacted and the firefighters' trade union, on behalf of its members, could be engaged in a dispute in opposition to the terms of that order about modified conditions of service which are applied by the employers—for example, where employers put into effect an order setting new conditions of service which, as we have seen, they will not allow to go to arbitration, instead insisting on new patterns of work, new rosters, new hours or closing stations.

Insofar as the dispute is between workers and employers, it will be a trade dispute, but it manifestly could be settled without the intervention of the Secretary of State. The employers might be willing to settle a dispute on terms that are different from the order the Minister wishes to impose. That is the justification we have seen tonight and in Grand Committee for the power to have the order: that they might make what the noble Lord, Lord Rooker, called in Grand Committee "sweetheart deals".

It could be argued that it was really a dispute with the Minister, which has been made in a number of parallel cases in the courts. That would exclude it from being a trade dispute—not because it had the wrong content about employment conditions, as in various cases, one of which the noble Lord, Lord Rooker, cited in Grand Committee—those were irrelevant—but because it was alleged to have the wrong parties. The Minister suggested in Committee that if an order had been made, only he could settle the dispute or only he could impose a settlement.

Section 244(2)(b) does not refer to a case where the Minister disapproves of a settlement made by the parties. It relates to where the dispute cannot be settled except by the Minister using his power. Section 244(2)(b) does not refer to a case where the Minister disapproves of a sweetheart deal or draws a line under a dispute which the parties could, left to themselves, settle without his intervention. It is about a case where, as one puts it, his approval is necessary to settle a claim otherwise it cannot be settled.

That is why there is at least a doubt—more than that, in my view—whether the section would apply to a case where the parties could settle without the Minister's intervention in a dispute that affects working conditions of members of a fire brigade. Without this amendment, or something like it, those workers might be prevented relying on the defences normally available in a trade dispute which otherwise would qualify as a trade dispute by reason of its content, because it could be alleged that it had the wrong parties—union and Minister—as against union and employer.

There is no reason why this defect should not be cured in the Bill. It is another case of the Secretary of State's order-making power being a root cause for why the normal protections for ballot-supported industrial action could be thrown into grave doubt by the Bill.

This problem is separate from the problem we raised in previous amendments. To refuse to face it is not a sensible way of approaching our industrial law. It is our hope that the Government, having had time to consider the matter further, after Grand Committee, will accept at least the thrust of the amendment. I beg to move.

Lord Bassam of Brighton

My Lords, the noble Lord, Lord Wedderburn, does Grand Committee a disservice. I know that some people hang on every word that is printed in Hansard following Grand Committee deliberations. Indeed, I have had many letters and correspondence from people who have believed—or perhaps questioned—every word that has been spoken.

This issue has, as the noble Lord said, been debated at some length, and our position is spelt out quite clearly on the record. But it is only right that I repeat it this evening.

The nub of the Government's position remains this: we do not believe that the amendment is necessary. We continue to believe that 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 fire brigade members protection.

In our view, there are only two possibilities. The first is that fire brigade members are in dispute with their employers. They hope that their employers will pay what the order requires and then some more besides. Providing the union and its members follow the requirements of the legislation, any industrial action that they take in pursuit of their dispute will of course be afforded the usual protection.

The second possibility is that fire brigade members are in dispute with the Secretary of State, because it is he or she who has made the order and they are seeking to change his or her mind about it. In that case, the dispute would fall within Section 244(2) of the Trade Union and Labour Relations (Consolidation) Act. Again, providing the union and its members follow the requirements of the legislation, any industrial action that they take in pursuit of their dispute will be given the usual protection.

We do not believe that there is some other, third circumstance in which fire brigade members can be in dispute, but somehow neither with their employer nor with the Secretary of State. Indeed, the noble Lord really gave voice only to those two instances himself. We do not think that they will find themselves outside the protection of the law on industrial action.

The noble Lord will undoubtedly say that the debate has not been listened to by the Government. However, we have listened. The fact that we do not agree with him and other noble Lords who have pressed these and similar related points does not mean that we do not listen; it simply means that we do not agree with their interpretation. That is simply and plainly as we see it. I hope that he will withdraw his amendment and that he does not find it necessary to bring it back at Third Reading.

11 p.m.

Lord Wedderburn of Charlton

My Lords, I got from my noble friend that I had put forward certain arguments and that he did not think that I was right— that he did not agree, but he did not give me any reason why he did not agree, except that the usual protections would apply. No doubt the usual protections will apply, but he said that there might be a dispute with the employers or with the Minister. I assure him that I do not want to be holding the brief for a union that has to accept that its dispute is with the Minister, because then it will need Section 244(2)(b), which states that the dispute cannot be settled without him exercising a power conferred on him by an enactment.

Such a dispute about conditions of service with employers could, of course, be settled without an order. The whole point of the Bill is that the Minister will say, "I don't like the settlement that you're making", or, to be quite concrete and realistic about the present situation, "I don't like the interpretation that you're putting on your settlement. I don't like the way that you're interpreting the pay rises or our other arrangements. I'm going to make an order". That is his choice. It is not a dispute that cannot be settled without his using his powers under the enactment.

Unless the Bill states that Section 244(2)(b) will apply in such a situation, there is the greatest possibility of what I envisage. There is certainly a doubt. The noble Lord mentioned people who had written to him. I wish that he would read out some of those letters. Then we would know who had written them. Whether they are as ignorant as those on the Government Front Bench seem to be about the basics of trade dispute law would become clear.

It really just does not do to spend the whole evening, until 11 o'clock, sitting on the Front Bench saying, "That is not our intention. We don't agree", without argument. As my noble friend Lord McCarthy said, this evening we have heard no argument. At least in Grand Committee we got some arguments from the noble Lord, Lord Rooker. He did not respect our amendments, or us, but at least he made some arguments. We have tried to say why they were bad ones tonight, but we have not had any extra arguments. The state of Denmark without the king has not responded with a clarion call from the Front Bench. It has merely said, "We don't think so", or, "That is not our intention". We are saying merely, "Put your intentions where your mouth is going to be heard by the courts"; that is, in the Bill.

Whether we return to the issue in this form at Third Reading is a matter for consideration. But the Government need not believe that we shall hear again with happiness the noble Lord, Lord Bassam, saying that it is only right that he should repeat what was said previously. We ask the Government not to repeat at Third Reading but to think; not merely to state again their intentions but to state what they want the law to be. The amendment is crucial as regards the practical application of the Bill in the courts if action is ever brought. A responsible legislature should envisage that and make provision for it.

For now, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 31 not moved.]

House adjourned at six minutes past eleven o'clock.

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