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Lord Clinton-Davis: Before my noble friend replies to this important amendment, I think that there is a point that the noble Baroness, Lady Walmsley, did not address. I am not sure that I heard the noble Baroness, Lady Anelay, aright, but I think that she did address it.

In my view, it is highly important that the word "may" does not become "will". It is important that this provision should be used only in certain very limited circumstances. It can be used at the present time. That is a point which the noble Baroness, Lady Walmsley, did not address.

In my view, while an auditory identity parade should be available, it should be used only in the rarest of cases. There is a danger that people who are subject to that kind of parade can all too easily be wrongly identified. We should not allow our natural emotions to be besmirched by that possibility.

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I cannot recall in my professional career an instance of such an auditory identity parade. No doubt there have been one or two cases but they are a minority. A special warning to the jury from the trial judge is appropriate in those circumstances. I do not oppose the idea at all but we have to be very careful about its use. I hope that my noble friend will concur on the matter.

5 p.m.

Baroness Scotland of Asthal: I say straight away that I understand the concerns raised by my noble friend Lord Clinton-Davis. I hope that in replying to the noble Baronesses, Lady Anelay of St Johns and Lady Walmsley, I shall be able to quieten my noble friend's concerns.

I absolutely understand that the amendment put forward is not proposed to be acted upon but simply to be a means through which we can discuss the matter. The noble Baronesses will be aware that the amendment contains a number of flaws with which I need not trouble the Committee.

The noble Baroness, Lady Anelay, was absolutely right to say that auditory identity parades already exist. They appear to be a very good idea. The noble Baroness, Lady Walmsley, gave a specific example of where such a parade had worked well. The importance of that case is that some very careful and precise steps were taken to ensure that the validity of that identification could be assured. That was what was so interesting and commendable about the work that was done in that case.

PACE Code of Practice D deals with the procedures for identifying persons by police officers and allows the use of auditory identity parades where the police judge them appropriate. As the noble Baroness, Lady Anelay, said, auditory identity parades are not used frequently. We are currently involved in ongoing work to make voice identification procedures more effective and develop their use as an investigative tool. If necessary, amendments to PACE Code D can be made in the future.

As drafted at the moment, the proposed new clause in Amendment No. 160B would preclude those who have normal vision but are unable to see temporarily—for example, if their head is covered—from taking part in auditory parades. That seems an unnecessary restriction on the use of such parades. We are trying to look at the quality of the means by which such identification can be perfected as opposed to its being solely available to those who are either partially sighted or do not have sight at all.

The noble Baroness presses on the timing and how much has been done. We appreciate the sentiment in the amendment. For the reasons that I have given, we resist it, but we accept that the matter needs to be looked at more quickly. I am not able to confirm the time when the work will be concluded, but I can tell her that the matter is being energetically pursued at the moment. My right

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honourable friend the Home Secretary is seized of it and has expressed acute interest in it. I assure her that the spotlight on the issue has not gone away at all. It is being pursued as quickly as possible.

If I have more news on where we are by Report, I will be happy to give it. I cannot say that it will be quite as good as the noble Baroness would like, but you never know.

Lord Hylton: The Minister mentioned that the police already had discretion in the matter. Would she suggest to the police, perhaps through the Home Office, that, where the witness has either lost his sight or could not see on that occasion but recalls particular words having been used, the suspect might be asked to repeat those words so as to obtain an identification?

Baroness Scotland of Asthal: I can quite see why the noble Lord would make that suggestion. In the case referred to by the noble Baroness, Lady Walmsley, a procedure was adopted by the police that might provide an exemplar of how the matter could be dealt with in future. Best practice to get the best quality of evidence before the court in a more consistent way is one issue being looked at. I take on board what the noble Lord said.

Baroness Walmsley: I thank the Minister for her explanation and do not intend to keep her from her well-earned rest very long. I welcome her confirmation that the Government are committed to the idea and her explanation of how the detail of the process is being looked into. The noble Baroness, Lady Anelay, and I, and the organisations that have briefed us would be most grateful for any progress reports she finds herself able to give us. It is particularly important that people with disabilities are given every opportunity to participate in justice. We are all behind that. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 160BA had been re-tabled as Amendment No. 252C.]

Clauses 133 and 134 agreed to.

Lord Bassam of Brighton: I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.

Royal Assent

5.8 p.m.

The Deputy Speaker (Lord Brougham and Vaux): My Lords, I have to notify the House, in accordance with the Royal Assent Act 1967, that the Queen has signified her Royal Assent to the following Acts:

Fireworks Act 2003,

National Lottery (Funding of Endowments) Act 2003,

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Human Fertilisation and Embryology (Deceased Fathers) Act 2003,

Northern Ireland (Monitoring Commission etc.) Act 2003,

Local Government Act 2003.

Fire Services Bill

Lord Rooker: My Lords, I beg to move that the Bill be now further considered on Report.

Moved, That the Bill be further considered on Report.—(Lord Rooker.)

On Question, Motion agreed to.

Clause 1 [Powers of the Secretary of State]:

Lord Wedderburn of Charlton moved Amendment No. 11:


    Page 1, line 16, at end insert—


"(2A) The provisions of an order made under subsection (1)(a) shall have effect, notwithstanding any agreement to the contrary, as binding terms of the contracts of employment of fire brigade members to whom it applies, and not otherwise."

The noble Lord said: My Lords, we are very glad to return to the Bill which, since the sunset clause was accepted in another place, has been rather doomed to be considered in the dim, evening hours of the sunset, but we are happy to have an opportunity to look at a Bill that raises such important questions.

The amendment concerns the orders that the Secretary of State can make under Clause 1(1)(a) and their legal effect. It eventually concerns the question of the right of firefighters and their union to take industrial action, a right that, time and again in Grand Committee, the Government have stated they do not intend to modify through the Bill.

Unhappily, in trade union law, Parliament has a long history of passing statutes which trade unions believe and are told, quite genuinely, release them from a series of illegalities, but decisions of courts later prove that they do not have that effect. In 1875, the new TUC parliamentary committee came close to winding itself up after receiving assurances of that kind. That belief was later rapidly reversed in the face of court decisions in the era of the Taff Vale case and the like.

There were similar occurrences in 1906 and in the 1960s and 1970s. Indeed, disaster would have ensued were it not for the famous amendment, which is relevant here, moved by Sir Charles Dilke at a late stage of the passage of the Trade Disputes Act 1906. I say with all humility that the amendment, as far as firefighters are concerned, is of parallel importance.

As constructed, the Bill threatens the right of the firefighters' union to take industrial action, albeit that we recognise that the Government say, as other governments have said for more than a century, that that is not their intention. That is why we are here tonight. The issue was not discussed in the House of Commons and it was not properly considered in

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Grand Committee. It is therefore a very serious matter for your Lordships to consider before the Bill goes through this House. Let me explain.

There are two ways in which a provision in or under a statute, such as an order made by a Minister in this case, can affect conditions of employment or other rights and duties. The amendment would cure the ambiguity in the Bill concerning the legal nature of duties imposed by an order under Clause 1(1)(a) on conditions of service. The first way in which a statute or order may do so is by imposing a statutory duty. An example would be a regulation under statutory powers relating to health and safety at work. Those duties are enforceable against the employer, for example, by persons whose interests are involved—very often, the worker concerned.

The Bill contains an example in subsection (9), which states:


    "It shall be the duty of a fire authority to comply with a direction contained in an order under this section".

The other way in which a statute or order can affect conditions of service is by imposing compulsory terms on the contract of employment. The legal force then operates not as a direct statutory duty, but through the medium of the contract of employment. That meaning is traditionally always made clear in the statute that wishes to adopt it. The primary example, which will be known to many of your Lordships, is the famous equality clause that was imposed to ensure equal pay between men and women in Barbara Castle's great Equal Pay Act 1970. Those duties are enforceable between employer and worker as a contractual condition of employment, because the Act says so.

There is another example in the Employment Act 2002, but the draft regulations in that Act have raised questions as to whether the Government are going to go through with that meaning. As has been said, it is not a difficult question of law. It is a simple proposition that has abundant authority from the courts and existing statute. It is that if the breach of a statute or, as here, an order—and by that I mean a group of work people not complying with, or not liking and acting against the effectuation of an order—is a breach of a contractual duty, the right to strike is undoubtedly retained, provided that the other conditions are met. Primarily, it must be action in furtherance of a trade dispute and the conditions imposed by statute as to ballots and other procedural requirements must all be met. Nothing in the amendment affects that. If, however, the statute or order imposes a direct statutory duty and that is contravened, the right to strike is lost—ballot or no ballot, trade dispute or no trade dispute.

That is not my proposition; it is the proposition of the Court of Appeal directed in Meade v Haringey Borough Council, which is reported in 1979 Industrial Cases Reports 494. In that case, two judges at the Court of Appeal made it quite clear. Lord Denning, Master of the Rolls, stated at page 505, that the legislation,


    "gives them [the union] immunity if they induce a person to break a contract. But it gives them no immunity if they induce a local authority to break a statutory duty",

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which was in issue in that case and which they had done. Lord Justice Eveleigh put it simply and in the same way. He said:


    "They [the union] may in proper circumstances induce others to break a contract in furtherance of a trade dispute but they are not entitled to order or solicit a breach of statutory duty".

The Bill leaves the position unclear. I must refer to the Minister in Grand Committee. The way he put it leaves an ambiguity even in respect of the intended application. He said:


    "To cut a long story short, if an order is issued under the Bill it directly operates on the conditions of service of the members of the fire brigade. The conditions of service are altered by the operation of the law immediately the order comes into force".—[Official Report, 14/7/03; col. 187.]

The quotation is longer, but if the Minister does not mind I shall not read the rest. It merely confirms that way of putting it. I have discussed it with a large number of colleagues and scholars on the subject and the majority view is that it appears clearly to impose a statutory duty to comply with the order.

Later at col. GC190, the Minister said that he was not sure what the effect of an amendment I was moving would be. He went on to say that,


    "any terms imposed by order under the Bill will be contractual in any case. It is difficult to know whether the amendment adds or removes anything. In some ways I have just made an argument for accepting my noble friend's amendment but I shall certainly not do so as to do so would be fraught with difficulty and would constitute uncharted waters. As I say, the imposition of any terms by order under the Bill is contractual anyway and therefore limiting the definition would not have any effect overall. As I do not know whether the amendment adds or removes anything, I shall reject it for the time being. My noble friend is always free to explore the matter at a later stage".—[Official Report, 14/7/03; col. GC190.]

We are exploring it now. We are saying, "Please, put the second meaning clearly on the face of the Bill. If you do not, you raise the question for the courts as to the meaning Parliament has put upon the clause in question and here on the order in question". The meaning is not what the Minister may intend.

In Grand Committee, I referred to the recent speeches of the noble and learned Law Lords in the constitutionally important case of Wilson v Department of Transport, decided on 10th July 2003 and available in your Lordships' Judicial Office. To sum up the main thrust of the judgments, with which all five Law Lords agreed, the noble and learned Lord, Lord Nicholls of Birkenhead, said:


    "The courts are strictly unable to take cognisance of the Minister's statements . . . they cannot control the meaning of an Act of Parliament . . . the courts must be careful not to treat the Ministerial or other statements as indicative of the objective intention of Parliament. Nor should the courts give a Ministerial statement, whether made inside or outside Parliament, determinative weight. It should not be supposed that members necessarily agreed with the Minister's reasoning or his conclusions".

The reason for the amendment is to introduce clarity into the Bill. We do not want to leave the question, as Lord Denning put it in another case in 1978, to be a matter of guesswork for the courts in deciding what Parliament intended. He said then that, where

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Parliament did not say what it meant in relation to the legal effect or nature of a statute or order imposing duties, he felt that it was a matter of,


    "guesswork . . . you might as well",

said Lord Denning, with his usual aphorism to make the point deeply,


    "toss a coin".

We do not believe that the courts should be left in the position of having to toss a coin to decide whether this is a direct statutory duty or an imposition of contractual terms operating by law as obligatory terms of the contract. We are of that view, especially because the right to strike depends on which choice one makes, as the Court of Appeal stated clearly in the case of Meade v Haringey Borough Council in 1979.

In one sense, the amendment asks the Government simply to clarify what they appear to have said in one part of their explanation in Grand Committee; in another sense, it also asks them not to fall into the kind of pit into which previous governments since 1875 have, for some reason or other, regularly fallen. Why it has happened is a matter of great debate among those involved in the scholarship of the subject. There is no need for it to happen here.

I hope that the Minister can give us some encouragement that, if the Government do not like the precise words of the amendment, they will at least accept the thrust of it and guarantee that, by the end of Third Reading, we shall see the right to take industrial action, as they intend, properly inscribed in the Bill. I beg to move.


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