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Lord Wedderburn of Charlton: My Lords, since the matter has been mentioned in your Lordships' House both on my part and elsewhere, Section 2 of the Emergency Powers Act 1964 states—most commentary regards this as perhaps the most important part of the Act—

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That should be placed on the record when the Emergency Powers Act 1964 is being discussed. The powers under the defence regulations that were then made permanent are extremely extensive.

Lord Campbell of Alloway: My Lords, I am grateful to the noble Lord, Lord Rooker, for the care with which he dealt with the amendments. Assuredly I would wish to reflect on much that he said. There is one matter where it would have been right on an old brief, but the question of whether collective bargaining ends has been dealt with as a result of a discussion some time ago.

Amendment No. 7 states:

    "(1D) No dispute shall be referred to the tribunal unless there has been a failure of collective bargaining, and such failure has been certified".

That is a small point, but the noble Lord, Lord Rooker, took it. If it is not certified by the parties, as I am told is the usual practice in collective bargaining, it could be certified by ACAS. I am taking that small point to correct it.

Of course I wish to consider the substance of the Minister's remarks. I will withdraw the amendment on that basis so that I may return to the matter if so advised at Third Reading. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 3 to 7 not moved.]

Baroness Hanham moved Amendment No. 8:

    Page 1, line 6, at end insert—

"( ) The provision that may be made by virtue of subsection (1)(a) includes the power to make provision about conditions of service relating to—
(a) membership of trade unions by fire brigade members; and
(b) disciplinary offences by fire brigades members."

The noble Baroness said: My Lords, I hope that I can be reasonably brisk. The Minister will know from our discussion in Grand Committee that we have a number of considerable concerns about the Bill, not least of which is how it would be implemented if it had to be implemented in the face of some considerable intransigence from the Fire Brigades Union. If the Bill has to be used it will not be used with co-operation but as a result of lack of co-operation.

At the end of the day it seems that there is nothing to stop the unions from striking yet again. Nothing in the Bill gives the Government any comfort at all about how to react if the worst comes to the worst and no one pays any attention to what the Bill says.

It has long been argued that the fire service ought to be in the same position as the police and the armed services. There ought to be no-strike clauses in relevant procedures or legislation to reinforce the Government's hand if they have to use this legislation. Perhaps the Bill is currently not the right place for such provision. I know that the matter has been considered and may be dealt with in the White Paper, but that will not help if this legislation has to be used. The two provisions in Amendment No. 8 specify that there should be no-strike

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provisions in this legislation and that disciplinary offences concerning those who breach not only these but other regulations should be included.

Amendment No. 5, moved by my noble friend Lord Campbell of Alloway, was never part of my proposals but it neatly complements them. My amendment is effectively more extreme than his, but it foresees the possibility of a more disastrous situation than the Government may have envisaged in the Bill. I beg to move.

Lord McCarthy: My Lords, before the noble Baroness sits down—and I hope that she will not follow the earlier innovation of saying, "I have sat down already"—does she agree that if the Government introduced an order and an employer were to say, "I can't carry out that order because the workers are on strike; they are not co-operating", and if it were taken to the point where the employer sacked those workers, and if they went to an industrial tribunal and said, "But this is unfair dismissal", that tribunal would be bound to say that they were not protected if they were sacked on the grounds that they were frustrating the performance of a statutory duty? That is the first way—there are other ways—in which it is not true that the measure does not affect the right to strike. They could be sacked and a tribunal could say that it was fair to do so. Breach of contract will apply and that will be the end of that.

Baroness Hanham: My Lords, I cannot answer any of that. What I am trying to build into the Bill is a means of dealing with the reality of the situation. It is currently a completely toothless tiger.

Lord Wedderburn of Charlton: My Lords, I put this not as a question but as two clear points. First, we now have repeated on Report what was said in Grand Committee—that the Opposition's official policy is to militarise the fire service, place it in the same position as the Armed Forces and abolish its right to strike. That is now clear and I am grateful that it has been made clear because it is a distinct difference from the Government, whose intention is not to affect the right to strike—although, as we shall later argue, unhappily, their Bill does not reflect that intention. However, the Opposition are clear: they want to conscript the fire brigade. That is the first point.

The second point is very serious for the noble Baroness. She made very similar points in Grand Committee—where we had a jolly little debate on one of her amendments. I asked her then more or less the following: "Does that mean that you denounce the ILO conventions which plainly state that, apart from the police and the Armed Forces, it is an offence against international law to abolish the right to strike of other groups of workers?" It is true that there is extensive ILO jurisprudence on the matter—jurisprudence in the sense of the Committee on Freedom of Association.

I asked that question some time ago, and the noble Baroness has had time to think about it. Yet she does not mention the ILO. Presumably, however, impliedly, she

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now confirms that it is Opposition policy to denounce that right in international law under the ILO. And it is not just under the ILO; it is also the Council of Europe, the European charter and a number of United Nations documents as well.

The noble Baroness has also had the chance to do some reading. It just so happens—and I want to refer to this work later, not in extenso but in general terms—that she has had the opportunity to read a piece of scholarship that sets this all out in enormous detail. I refer to the book, published this July by Oxford University Press, which seems to take the Minister's fancy, by Dr Tonia Novitz, called The International and European Protection of the Right to Strike. I do not suggest that the noble Baroness should have read it. One of the marks of these debates is that people do not read things. It is not her fault and she is not alone, but she might have considered the point. She wants to militarise the fire service and denounce the ILO. That is a clear distinction from government policy and, whatever I say about this Bill, I recognise that distinction. I think it deplorable that the Opposition of this country, who believe—well, they may not believe it, but who think—that they may one day form a government, come out with that stuff. It is disgraceful.

11.30 p.m.

Lord Campbell of Alloway: My Lords, the noble Lord refers to the concept of my party, or the party to which I adhere, of conscripting the fire brigades. I know of no such policy. I have always made it plain that the individual right to withhold or withdraw labour would always be maintained and preserved. I made it plain, although it may not have suited the noble Lord to understand, that I was referring to collective action taken within this union because of the danger to the public and the public interest. It had nothing to do with conscription and I was totally prepared to accept the imposition of service in any time of emergency because it would be necessary—but not otherwise. It is not fair of the noble Lord, Lord Wedderburn, to have read out all sorts of passages from the Oxford book on the matter to my noble friend Lady Hanham. Neither she—I suspect but do not know—nor I know of any policy of our party as was suggested by the noble Lord.

Lord Rooker: My Lords, I shall concentrate on Amendment No. 8. I dealt with Amendment No. 5 in the context of the noble Lord's views, but as the noble Baroness said, Amendment No. 8 is the key amendment. It provides that an order under Clause 1(1)(a) could include provision about membership of trades unions and about disciplinary offences. Since firefighters currently enjoy an unfettered right to join a trade union, this amendment could only constrain that right. I understand that the intention behind this amendment is to put members of fire brigades on the same or similar footing as police officers.

Police officers are prevented joining a trade union by virtue of Section 64 of the Police Act 1996. Police officers are also subject to the Police (Conduct)

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Regulations 1999, which include a code of conduct covering various matters such as attendance at work. Any breach of the code—for example, taking strike action—could ultimately lead to dismissal. The central issue here is the so-called right to strike. I remind noble Lords that there is no statutory right to strike in the UK. However, there is no practical way to prevent someone withdrawing their labour or to force them to work. So a ban on strike action would be pointless. The so-called right to strike is given by the Trade Union and Labour Relations (Consolidation) Act 1992. This provides statutory immunity for striking workers and their trade unions so that they are protected from legal action for breach of contract provided the industrial action is in response to a trade dispute and has been subject to the proper balloting and notification procedures. In addition, the ability to strike is seen as an important part of the freedom to associate under Article 11 of the European Convention on Human Rights.

I accept that it is a matter of judgment whether fire-fighters, like the police, perform a role which makes it necessary to interfere with the basic right of any working person to withdraw their labour. Our judgment remains that they do not. We have made our views on this point absolutely clear in our White Paper, Our Fire and Rescue Service, which stated in paragraph 7.25 that,

    "employees' ability to take lawful strike action should only be withdrawn in exceptional circumstances. While some may well argue that the experience of the recent fire strikes provide precisely such circumstances, the Government has no plans at present to remove from employees in the fire and rescue service existing freedoms under the law to take industrial action. But it will keep the position under close review".

Under any circumstance, I do not think the kind of powers that would be conferred by Amendment No. 8 would be an appropriate way to deal with these matters. I could certainly not support the idea of the Secretary of State legislating in an order about such fundamental things as trade union membership.

So far as the second limb of this amendment is concerned, the Secretary of State already has the power to make regulations about discipline in the Fire Services Act 1947 (Section 17). The recent White Paper explained that we intend to abolish the current military style regulations and replace them with a new framework based on ACAS best practice guidance. We do not need another power here. Therefore, Amendment No. 8 is unnecessary and I hope that, on reflection, the noble Baroness will not press it.

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