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

My reason for rising was really to make the point that these amendments are in a sense looking at the reform of trade union law dealing with these common law authorities, putting an interpretation on them that may or may not be legitimate. However, this Grand

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Committee is not the Appellate Committee of your Lordships' House. These amendments, put forward in this way, all but breach the limitation of the long title and the intendment of what after all is an ad hoc, short-term Bill under which conditions of service may be imposed by government decree to resolve fire brigade disputes.

4 p.m.

Lord Wedderburn of Charlton: Will the noble Lord advert to the words of the amendment? They deal with the,


    "contravention . . . or non-compliance with this Act".

They are not concerned with anything other than "this Act".

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

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

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

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

Baroness Turner of Camden: Does the noble Lord agree that the wording of these amendments relates precisely to this Bill? We are not talking about a White Paper. We are not talking about anything but this Bill,

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what this Bill says and the absence from this Bill of certain protections which we think should be there, even in a short-term-type Bill.

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

Baroness Turner of Camden: To this Bill.

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

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

Lord McCarthy: Ministers seem curiously reluctant to speak. We must go on.

The Minister of State, Office of the Deputy Prime Minister (Lord Rooker): I will reply to the debate. That is what I normally do.

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

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

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

Or, as the noble Lord said before me, they may say, "Your formulation is all wrong". We are very used to that. We have suggested all kinds of amendments. When the Conservative government were in power, I suggested dozens and dozens of amendments. Very often they turned me down by saying, "You've got the words wrong. You've put the semicolon in the wrong place. It doesn't mean what you want it to mean". Our answer was quite simple, though the then government never accepted it. We said, "The government are the

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experts. If you are behind the principle, afraid of the possible consequences and averse to the risk, then you should find the form of words. Give us a form of words. Give us your form of words". Sometimes they did.

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

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

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

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

So we are not talking about a distant period when there may be further legislation. We are talking about this Bill and this Act. The Government will seek to use orders; indeed, the Secretary of State says that he will have to do that. In the White Paper, the Secretary of

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State says that there is not a chance that the changes they want will be agreed by the parties concerned. So I say that there is a very real possibility that this will happen. It is for the Government to tell us the answer.

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

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

4.15 p.m.

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

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

Amendment No. 34 appears to try to side-step the requirements about ballots of the 1992 Act. I say "appears" because the opening sentence of my notes about purpose and effect states that Amendment No. 34 is somewhat unclear in its effect. Its effect would be

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to ensure that failure to comply with an order under the Bill is not unlawful as a tort, and nor is inducement or incitement to commit a breach or non-compliance. The Government consider that a very unattractive picture.

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

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

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


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