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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 annoyedI 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.
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.
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 findthe Minister is amused by what I have just said.
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 ballin Latin, this time. I was about to translate into Latin, but I hesitate.
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
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.
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 incorporatingindeed, arguably, do incorporateaspects 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 chairthe chair, of all thingsin a voluntary body.
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.
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,
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 sayat least, they are listening but they do not accept that I am talking in good faiththat 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 trueI 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 itI am not a lawyer
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