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Lord Wedderburn of Charlton: I am sorry to hear the Minister say that because his case rests on a misapprehension. I am not in the least upset or annoyed—I never get annoyed if I can help it. I assure him that I am not annoyed. It is just that, with the greatest of respect, he has not understood the case that I have made.

I am afraid that it is necessary to quote cases which the Minister appears to have overlooked. I have only the references with me, but if he would like I could happily go away and photocopy the entire judgments.

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If I may, I shall explain it in very simple words. The conditions of service of an employee do not include merely what is written down on the paper: there are expressed terms of employment and implied terms. My learned friend Professor Freedland of St John's College, Oxford, is about to publish a new edition of his book on the contract of employment. A vast part of that book has been, and in the new edition will be even more so, about implied or incorporated terms of employment. Those incorporated terms of employment, by implication in many cases, frequently incorporate terms from collective documents which apply to the workers and to the employers.

The employers often rely on incorporated terms, although they often deny that they are incorporated. There is often a big argument about it in court. It is not a question of lawyers enjoying themselves with the issue. Lawyers are instructed to argue the points. If the Minister looks at the case of British Leyland UK Ltd v McQuilkin, in 1978, in the Industrial Relations Law Reports 245, he will find a case about which an enormous amount has been written. In the end, the court held that collective arrangements are not to be incorporated into the contracts of employment individually. That caused enormous astonishment to the commentators.

Lord Campbell of Alloway: Will the noble Lord give way?

Lord Wedderburn of Charlton: If I may, I shall just finish the point.

I do not know whether the Committee wants me to quote the dozen other cases on which I have now managed to put my finger. I hesitate to quote a book of my own, but if the Minister wants to look at chapter 4 of The Worker and the Law, he will find it all set out. If he would like to look at Professor Freedland's old edition or new edition, he will find—the Minister is amused by what I have just said.

Lord Rooker: Far from it. I am crying all the way to the Latin that is in my reply.

Lord Wedderburn of Charlton: From a sedentary position the Minister uses the method that he used in the previous sitting, for which we have received no apology, of playing the man and not the ball—in Latin, this time. I was about to translate into Latin, but I hesitate.

Lord Campbell of Alloway: Is the noble Lord in a position to give way?

Lord Wedderburn of Charlton: If I may, I shall continue.

Lord Campbell of Alloway: Of course; yes.

Lord Wedderburn of Charlton: I am very grateful to the noble Lord.

Let me put it in words of one syllable. In a vast number of cases the issue arises of whether collective arrangements are implied into the individual contract of employment. Having looked at the agreement, the

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disputes procedure and the terms and conditions—which, as I understand it, are the normal terms and conditions of firefighters—I think it highly arguable whether parts of the National Joint Council procedure are likely to be implied into those contracts of employment.

In his reply, the Minister did not respond to that point at all. He did not seem to think that there are such things as implied terms in a contract of employment. Unless he can show that it is absolutely impossible for parts of the collective arrangements to be implied into the contract of employment, he does not have a case for saying, as I believe he said, that the Bill does not provide for that possibility. It does. Simply as a matter of arguable law, that possibility exists under the Bill's powers. If he does not want that to be in the Bill, for goodness' sake say so. Accept an amendment that says so. Then there will be no problem and we can all go home.

Lord Campbell of Alloway: I apologise for having interrupted the noble Lord's dissertation twice. As I always give way at the drop of a hat, I assumed that he might do so. I apologise for that.

I have two questions for the noble Lord. We have heard about what is incorporated in contracts of employment. Is there a standard contract of employment for all members of the fire brigades? If so, what is in it that implies or incorporates the subjects of this discussion? I apologise for interrupting the noble Lord's great legal dissertation, but surely that is the nub of the question.

Lord Wedderburn of Charlton: If the noble Lord wants to hear a dissertation I will give him one. But he does not; he wants an answer to his question, which he reasonably and properly puts. The standard terms and conditions for the employment of a member of the fire brigade are capable of incorporating—indeed, arguably, do incorporate—aspects of the procedures of the collectively voluntarily agreed arrangements which include the National Joint Council. That is my proposition.

No doubt if the Minister and I met in a different context, both being instructed on opposite sides, he would say that we could make whichever argument we wanted for or against that argument according to who instructed us. However, it is not an unarguable proposition, as the Minister suggested. On the contrary, it is a highly arguable proposition. If I had to choose, I would choose that it is right. However, I would want to join him in going through the entire procedure and identifying the particular aspects relating to the National Joint Council and its composition, and to the union's right to nominate its own members and to agree with the employers on the chair. It is extraordinary to allow the Deputy Prime Minister to nominate the chair—the chair, of all things—in a voluntary body.

All those issues impact on the individual contract of employment. Arguably, many of them—though not all of them—form an implied part of the matters on

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which employees can rely. What is implied is a question of the intentions of the parties. If we ask the fire authority and a fire brigade member, "Do you mean that these matters which relate to the conditions of service will be dealt with in the National Joint Council procedures?", of course they will both answer, "Yes". One can go through the agreements and find that type of issue. If we then asked, "Do you mean the National Joint Council as agreed between the pair of you, putting up your own representatives?", they would say, "Yes". If we then asked, "Do you mean that it would be chaired by someone nominated by someone—some Minister—outside?", they would say, "Good Lord, no; of course not". That is what would happen under the current arrangements. I do not know what the fire authorities would say about it in future, but I know what the workers would say. I submit that I also know what the employers would say at the moment.

With the greatest respect, the idea that the Bill does not contain any power that could modify that position is just wrong. That is my submission. The Minister may be able to find a case. However, finding cases is not just a matter of looking up into the sky and picking out some heavenly body that attracts the eyes of the observer. Finding a case is finding a series of logical propositions in law from a judge that supports one's argument. That is why one refers to cases. If the Minister does not have any cases, I do not know where he can go.

My submissions back the amendment and I support them. I believe that I have made a case. I believe that the Minister should at least say that he will take it away and look at it.

Lord Rooker: I think that my noble friend has holed himself below the water in this case. I do not believe that any judge would seriously consider the comments he has just made as worth a row of beans. He made a very clever legalistic interplay between what is in this Bill and what is in the White Paper. As I have repeatedly made clear, they are totally different issues. He cites one sentence and then says, "The Deputy Prime Minister will impose the chair". That is nothing to do with this Bill. Parliament will have a full opportunity to debate that on another Bill.

I fully accept that aspects of collective agreements are written into contracts of employment by implication; that has been the order of the day for many years. However, my noble friend used the term "aspects of procedures", whereas the amendment talks about,


    "the composition of a negotiating body".

Anyone could look at the terms and conditions of service of a fire brigade worker and work out the composition of the National Joint Council. It is absolute and utter nonsense that the employers' side could be changed by the firefighters, but that is what my noble friends are implying. When we come to conditions of service—

Lord McCarthy: Will the Minister give way? This matter will become clearer when I move the next

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amendment, but we are saying that the procedures represent rights. The workers have the right to use the disputes procedures—for example, to raise grievances. One could take away those rights through the provisions of the Bill.

4.45 p.m.

Lord Rooker: That is not true. I have repeatedly made it clear, although my noble friends have refused to listen or to accept what I say—at least, they are listening but they do not accept that I am talking in good faith—that the negotiating procedures, including arbitration, of the parties that are already part of the current agreement are freely available for them to use at any time they want. That is the whole point of the exercise. The idea that they cannot do so is nonsense. It is absolutely true—I said so last week and I repeat it today.

Therefore, the issue comes down to the conditions of service, on which all kinds of things have been hung. As I understand it—I am not a lawyer—


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