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Lord Wedderburn of Charlton: My Lords, on a point of information I ask about a straight question of fact. Are the Government planning to abolish those regulations and the promotion regulations before the end of the year?

Lord Rooker: My Lords, we shall legislate following the White Paper. We have produced a White Paper which precedes legislation. There will be a Bill but I do not know when it will come before the House.

Baroness Hanham: My Lords, I thank the Minister for his reply and the noble Lord, Lord Wedderburn,

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and my noble friend Lord Campbell of Alloway for their interventions. Irrespective of what happens with this amendment, the question still remains of how the Government will implement their legislation if they have to. The right to strike remains and therefore a strike can take place whether or not the Government decide to implement the Bill. A strike can take place if the Government decide to implement the Bill. Therefore, the Bill remains unimplementable in the face of intransigence. That is one of the big flaws in the legislation. If people do not agree with what the Government are saying and do not want to go along with that, it is almost impossible for the Government to have their way.

However, I hear what the Minister says—

Lord Rooker: My Lords, the Bill is a means for the fire-fighters to get the money in the event of a dispute. In certain circumstances we want to pay them the money. The argument that the Bill is unimplementable is abject nonsense. It will give the Secretary of State the power to get the payments to the fire-fighters.

Baroness Hanham: My Lords, I did not intend to end on a note of disagreement. However, under the Bill the Secretary of State could put forward any scheme at all. The Bill states that he can impose pay and conditions of service, but it does not say what they are unless there are to be further Explanatory Notes attached to the Bill stating that the Secretary of State would implement only the pay as agreed at the present time. However, that is not stated in the Bill. As I read the Bill, the Secretary of State could decide not to accept a pay deal and to impose a completely different pay deal and try to implement other conditions of service. That might not be at all acceptable to the Fire Brigades Union, but that is how I read the Bill.

Lord Rooker: My Lords, the whole point is that if there was a deal, there would not be a dispute. We laboured this point in Grand Committee. I said that the Secretary of State would not be using the power to reduce firefighters' pay. We discussed this. It would be a means of his being able to get money to the firefighters which the dispute was stopping.

Baroness Hanham: My Lords, on the basis of what the Minister has said, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Hanham moved Amendment No. 9:

    Page 1, line 6, at end insert—

"(1A) Before making an order under subsection (1), the Secretary of State shall conduct a postal ballot of all fire brigade members on his proposals.
(1B) In relation to subsection (1A) above, it shall be the duty of any fire authority to supply the Secretary of State with any information he requires to enable a ballot to be conducted."

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The noble Baroness said: My Lords, I hope that I can introduce this amendment even more briefly. Again, it goes to the heart of whether, and how, the provision would be implemented. It is clear that the Bill will be implemented only at the end stage, when everyone is exasperated and has lost the plot.

At the end of the day, it would be worth the Secretary of State testing the views of the Fire Brigades Union by a postal ballot before implementing the deal. That is what the amendment suggests. I beg to move.

Lord Campbell of Alloway: My Lords, I am worried about this amendment. I have let my noble friend know my views. Irrespective of whether my amendments hold or fail, this amendment has to be qualified. As it stands, it would delay plenipotentiary powers of immediate effect in the event of a terrorist attack. So it would require a drafting qualification to make certain that these provisions should not apply in the event of an emergency.

Then, we are getting again towards the two regimes, which at the moment the Government are not willing to accept. But if the Government are not willing to accept that, I suggest that they have to take on board my concern about the amendment.

Lord Evans of Temple Guiting: My Lords, I am most grateful to the noble Lord, Lord Campbell of Alloway, for his intervention. That is precisely the Government's argument: that the postal ballot would take time without getting anywhere.

The powers in the Bill, as we have said on many occasions, are designed to deal speedily with a situation in which the normal process of negotiation has broken down. We also made the point in Grand Committee that the Office of the Deputy Prime Minister does not have available the up-to-date information to carry out such a detailed ballot. Although the latter part of the amendment requires fire authorities to supply the Secretary of State with relevant information to carry out a postal ballot, the amendment gives no time limit within which the fire authority should comply. Should the fire authority wish, it could delay the process to such an extent as to render it useless.

Even if the Secretary of State did carry out a postal ballot on an order modifying or fixing conditions of service, it is not clear what we would do with the results of the ballot. The amendment does not say what should be done with the results, and to that extent it has little meaning.

If the purpose of Amendment No. 9 is to seek consultation from fire brigade members, that is already provided for through consultation with the negotiating body, which will include representatives of fire brigade members, under Clause 1(3).

As I have explained previously and as we have said on many occasions, the powers in the Bill are not for generalities but to deal with a specific set of circumstances surrounding the strikes earlier this year. Against that background, I hope that the noble Baroness will feel able to withdraw her amendment.

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11.45 p.m.

Baroness Hanham: My Lords, if one gets to the stage of needing to use this Bill, it is possible that negotiating bodies will no longer be the people with whom one is considering doing any deals. That will have all broken down. It might very well be that what the Secretary of State wants to introduce could be perfectly acceptable to members of the Fire Brigades Union. There has always been a question about how many people support the action. The only way that the Secretary of State will ever be able to find that out is in a non-emergency situation. I accept that it is technically a fault on that basis, if we are now accepting that there are two sides to the Bill.

The fact of the matter is that one might get very different results from postal ballots than from negotiators. It seems to me perfectly proper for the Secretary of State to have that ability if he wishes. One could easily limit the period in which the information had to be provided about the personnel. If that is a technical hitch, it could easily be amended. Having said that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord McCarthy moved Amendment No. 10:

    Page 1, line 6, at end insert—

"(1A) The Secretary of State shall publish a code of guidance explaining the conditions under which or situations in which he is likely to wish to make use of his powers to make orders under this Act, and such code of guidance shall create no legal rights or duties but shall be taken into account by the courts in relation to any order."

The noble Lord said: My Lords, we now change the emphasis. We have been trying to get the Government to say a little about the circumstances when they would bring the Bill into action and when they would say that it was an emergency. We have been concentrating on emergencies. Now, we shall try a slightly different approach in the hope that we might get somewhere. The amendment talks not of limitations but of a code of guidance, explaining the conditions in which the Secretary of State is likely to make use of his powers to make orders under this Act and that,

    "such a code of guidance shall create no legal rights"—

so it is different in that respect—

    "or duties but shall be taken into account by the courts".

That is an attempt to transfer into the field of the fire service the concept of guidance, advice or statutory codes of practice.

There are many statutory codes of practice which specify all kinds of things. For example, there is the code of practice that deals with how to conduct legal ballots or what to do to comply with the health and safety law or to avoid discrimination. Many codes of practice tell the parties, the individuals, the employers and the workers concerned what their legal rights and liabilities are and a very great deal about how the Act is designed to work.

Strangely enough, so far as I know—and I should be very pleased for the Government to get up and say that we have this wrong—the Government do not propose to provide guidance to the parties on this quite

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unusual, if not unique, experiment in legislation. Therefore, we are suggesting that they might like to do that. For example, they might like to say something. They might reprint the words of the noble Lord, Lord Rooker, about what an emergency situation is. I was very surprised to learn that he did not think that the last fireman's strike was an emergency. I do not know what an emergency would be. The way the Government criticised the union—and of course they are perfectly entitled to do that—one would have thought that it was an emergency situation. After all, there was a sense in which the country was at war. The problem, the Government said at the time, was that it was time that the soldiers who had been sent to Iraq came back or that it was time they were circulated around. We could not go on like that. That was a very large part of the Secretary of State's argument.

Therefore, if we could have a return to those themes and be told the circumstances in which the Government would think it was an emergency, that would be extremely useful for the parties. It would certainly be of use to the parties if there was something—not on the face of the Bill—about the circumstances in which the Government would use these orders if there was no sign of industrial action. I had thought, before the Minister made his speech in Committee, that we could more or less assure ourselves that government would not use this Bill, which is to deal with an emergency situation, if there had been no sign of a strike. In most of the ways in which he developed the argument, there is a strike, the strike has been going on for quite some time. They may even have got to the point where they have made a settlement, but that is not enough. We would like to know why it should be that, when there is no industrial action in prospect, this legislation should be introduced. Would it be introduced only in the sense that the Minister might propose something, but would not necessarily bring out an order until he could size up the situation?

There is, of course, the question that has been raised—and again I think it would be very useful for the parties involved to be told—as to how far and in what circumstances the Secretary of State might bring out his orders, even if there was an agreement. I know that the Minister referred in Committee to circumstances where the parties had got together and there was some settlement that was a carve-up, in which the two sides were agreeing things and expecting the Government to pay. But surely something more could be said about the kinds of ways in which an agreement would produce not peace, quiet, placidity and acceptance, but an order?

As I said in Committee, there can be occasions, very often there are, when the parties to a complex negotiation agree two-thirds of it, but they cannot get the last bit done, they cannot get the words done. Those words are not necessarily critical, they may be thought to be more important by one side or the other, but what they really want is time, and they might take that dispute, that issue, out of the negotiations. They might say, "We will come back to that in six months. It is something that we do not want to discuss any

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further. We will sign what we have got." Is that the kind of situation—surely not—in which the Secretary of State could suddenly say, "Well because you have not agreed everything, I will introduce my order."? I would not have thought so, but maybe it is, and if it is, then I think it is possible that we ought to have an understanding.

I go back to the point that I made in answer to the previous amendment. The Government go on about the fact that this is not changing the right to strike. You can argue about whether it is changing the right to strike and the extent to which it is changing the right to strike in relation to the trade union. We are talking about whether the trade union is inducing a breach of contract. But as I say, think of the worker. How can the Minister say this, if he is paying attention?

Suppose the employer says, "I will sack these people. This is a statutory duty. I can sack people if it is a statutory duty because it is not a breach of contract. It is unlawful. They are preventing me from carrying out the statutory duty." He sacks them. They then have to crawl all the way to an industrial tribunal. It takes a long time with conciliation and mediation. They are on the stones. You cannot say these people have not had their right to strike abridged. They are on the stones, they have lost their jobs. Eventually they go to a tribunal and the tribunal says, "That is perfectly true, we have authority for this, after all Lord Denning said that there is no immunity for an authority to break its statutory duty. So if that is the case then there is no immunity for the workers who forced it to fail in its statutory duty." So the union loses. So the union goes to the EOC and the union goes to the Court of Appeal and it keeps going and all this time the workers are sacked and if more workers come out in support of these workers they are sacked as well. The strike has been broken by dismissals, by sequential, growing dismissals. How can you say that that does not abridge the right to strike? That problem does not arise for any other group of workers in England. Of course you cannot say that.

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