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Lord McCarthy: My noble friend has developed the argument with particular reference to the uncertain state of the law. He cited many extremely persuasive authorities, including the judgments of Lord Denning. The Government may well say—to some extent, they have said—"Well, time will tell. It may turn out that you are right; it may turn out that we are right", although it is not absolutely clear that what they are saying is right. They do not come before us and say, "Well, conditions of service are the same thing as contracts of employment". They do not go so far as to say that, but they say that there will still be a right to strike. One might say that whether there is a right to strike or whether the right to strike remains as it is at present is something which, in the fullness of time, the courts will decide.

However, I want to suggest, as I tried to do in Grand Committee, that the striker or would-be striker or the member of the fire service would not be able to wait or, I suggest, would be unlikely to be able to wait for the courts to decide. In that connection, my noble friend mentioned the debate that we had with the noble Lord, Lord Rooker, on 14th July, as reported at cols. GC 181 and so on of Hansard. I sought to explore the sense in which the Government could continue to say that a right to strike remained.

I think I understood—the point of this intervention is to see whether I understood correctly—what the noble Lord, Lord Rooker, said. It seemed to me that he was saying that if there was industrial action and it

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was lawful in the sense that there had been a ballot, nevertheless, if the Secretary of State issued an order and created a statutory duty, the chances are that it might well eventually transpire that that statutory duty would create a liability. If any worker was found to be frustrating that statutory duty that would be an unlawful act, but that it might not be; and the legal process might be gone through to find out.

The point was that the right to strike had not been got rid of. It might have been made a little more faint. It might have been temporarily put upon a shelf, but it would re-emerge. I sought to find out the sense in which it would re-emerge. I think that the noble Lord was saying (at col. GC 181 of Hansard) that, of course, so long as the workers conformed or the employers did nothing about the fact that they were not conforming in the enforcement of the statutory duty, the time would come when the terms and conditions of employment would be changed. People would return to work, there would be peace, tranquillity and quietness and a new right to strike would rise. The right to strike would still be there in exactly the same way as it is for the labour force. It would still be there because—I suggest solely because—there was no order.

As long as there was no order, as long as there was peace and quiet and, in the case of a dispute—the Minister said that the dispute could be about something which had been the subject of an order—as long as no industrial action was taken, or, as long as the union and the members only took industrial action after a lawful ballot, the right to strike in the case of the Fire Service would rise again in all its purity.

The trouble with that is that there might then be another order. The moment that order is introduced, the workers concerned would find that they did not have the right to strike. That is a very poor right to strike, which does not affect other workers. Other workers do not have the threat that if they start to have any effective industrial action they are made the subject of an order which cancels their right to strike for the time being.

If I am right and that is the sense in which the Government are saying that a right to strike will remain, I ask the House to think of the position of the individual workers. The chances are they will be dismissed. No doubt the employer will be told through guidance in legal journals and so forth: "This is not a breach of contract but the interruption of an imposed condition of service. You can dismiss those people".

What would be the position of the individual workers then? If the matter went to the current Master of the Rolls he may say that they are protected, but they will be on stones. That is the point. What would be the position of the chairmen and side members of industrial tribunals who find that people had been dismissed in that context? Of course, the union would come along and take the case to an industrial tribunal. Meanwhile, the individual worker is dismissed. Even if the tribunal found in his favour he would get only compensation; he would not get back his job. Then we would find out whether the Government is right or the

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noble Lord, Lord Wedderburn, is right. That is not enough, and that is not fair. That is not, in effect, a right to strike. It is a right to strike which the workers use at their peril; and it is a right to strike which can be interrupted effectively at any moment by the Secretary of State imposing an order. I ask the Government, therefore, to think again and to agree to this amendment.

5.30 p.m.

Baroness Turner of Camden: My Lords, this really is a very simple amendment. My two noble friends have advanced a great deal of legal argument in support of it. I do not want to follow down that path. It seems to be a simple question: if a union orders a strike in breach of a contract of employment and goes through all the processes required—balloting and so on—there would be immunity; but if the strike is in breach of a statutory order the union has problems. The issue is as simple as that.

Lord Rooker: My Lords, the issue is even simpler than my noble friend Lady Turner states. Amendment No. 11 seeks to put on the face of the Bill that the provisions of any order under Clause 1(1)(a) about terms and conditions of service shall have effect as binding terms of the contracts of employment of fire brigade members to whom it applies. It is simple because we have already said that we propose that such orders should indeed take effect as new or revised contractual terms. That appears to be in effect stating the obvious.

The amendment adds nothing whatever to our intention. In fact it would produce a restriction of uncertain effect and offer opportunities for debate; and it offers absolutely nothing additional to fire brigade staff. I do not want to wind my noble friends up, but I have not heard from any modern practising academic or industrial relations expert to the effect that we have a problem with this part of the Bill. Therefore, on that basis, I invite my noble friend to withdraw the amendment.

Lord Wedderburn of Charlton: My Lords, I am disappointed by that reply because—it would not be unfair to say—my noble friend suggests that it is nonsense to move this amendment. The Government may propose that the order takes effect by way of obligatory terms and conditions of employment. One is bound to ask why they do not propose it in the Bill. What on earth would they lose by making that clear in the Bill? What are they afraid of?

Secondly, is the Minister denying that where a legal duty is imposed by a statute, as in this Bill, it is for the courts to interpret—not for the Ministers to interpret if they have chosen to say nothing—what kind of legal duty it is? I refrained from pointing this out, but so many matters were raised by my noble friend's reply that I must put some of them on record. First, on the fire authority's duty in Clause 1(9), the Government go out of their way to make it clear that they are imposing a statutory duty. Why do they not adopt a similar

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clarification concerning the order on conditions of service? Conditions of service are not defined in the Bill. We are told what they include in a later subsection.

Furthermore, the Minister says that no writer, scholarly expert, or, as I understood him, anyone else he knows of, thinks that there is a problem. I invite him to stand up now and to say who he has consulted. I have consulted—I am not at liberty to divulge their names, but I shall certainly get them by Third Reading if they agree—a number of people of various types, shades and hues, not all of them necessarily of bad character under the Criminal Justice Bill, who take the view that there is a problem here. One even takes the view that the issue is both contractual and statutory.

Frankly, I do not think that we are at liberty to adopt such an interpretation. They all agree there is a problem, but my noble friend does not. What is this curious lethargy in trade union legislation? It is only for workers and their right to strike that these gaps are left. It happened in 1871, 1875 and even in 1906, 1913 and subsequent statutes, although not so much, I am proud to say, in the Labour Government's legislation in 1974 and 1992, when several problems of this sort were solved. Why do the Government want to create another one?

Since my noble friend has taken this attitude of blase smugness, I wish to put on record the simple proposition that the union with a ballot and a trade dispute has the right to induce a breach of contract and is protected. A union with a ballot and a trade dispute does not have any protection, nor do its workers individually, as my noble friend Lord McCarthy has said, in respect of an inducement of a breach of statutory duty.

I wish to put on record the case of Meade v Haringey Borough Council of which the Minister, I say with great respect, appeared unfamiliar; and the case of the Department of Transport v Williams, (1993)—these are in all the books—in which the Lord Justice Dillon said that,


    "anything which is illegal under any statute provides the unlawful means",

for tortious liability.

I wish to put on record the judgments of Associated British Ports v the TGWU (1989) in the Court of Appeal, of Rookes v Barnard (1964), of Stratford v Lindley (1965) and the case of Acrow Automation v Rex Chainbelt (1971). If the Minister is not familiar with those decisions, he should be by Third Reading.

I also refer to the case of Michaels v Taylor Woodrow (2001), Chancery 502, in which Mr Justice Laddie refused the entire authorities including four cases in the 1999–2000 era that manifestly support the point that this simple, clarificatory amendment is trying to make.

Whatever the intentions of the Government, are they really so proud and arrogant in their drafting of the Bill that they refuse to include a clear protection, which they say they intend, for a particular group of workers in the public service? I cannot understand the Government's position or the reply that we received

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today. The matter needs a great deal more work by those who advise the Minister and the Minister himself. I say that because—I must add this point because noble Lords who were not in Grand Committee will not have heard it and there are very few noble Lords present tonight to consider the rights of firefighters—an injunction can be obtained not by those who prove a final case, but by those who prove an arguable case.

There is no difficulty in law about that. There are problems about how that applies when the balance of convenience lies with the claimant and so forth. However, an arguable case has to be proved. Is the Minister really saying that, with the Bill as drafted, without the clarification that we seek, there would never be an arguable case that an order under Clause 1(1)(a) imposed a statutory not a contractual duty? If he is saying that, your Lordships' eyebrows should reach beyond the ceiling.

This is a helpful amendment for the Government. They say that they want to make it clear that firefighters are not in any way discriminated against in terms of the normal rules of industrial action. We say the same, but it is not made clear in the Bill. Our amendment would make it clear, although it will not settle the question, as later amendments will show. There are other matters to be raised. As my noble friend Lady Turner of Camden said, this is the simplest of simple amendments to make progress on this matter. That is why we moved it, genuinely hoping for a positive response of some sort from my noble friend the Minister.

However, if there is no indication that this fundamental point which is coming to be well known in the trade union movement can be addressed properly and professionally by the Government, it will be necessary to return to the matter firmly at Third Reading to press the point with any noble Lords who are in any way concerned about the rights of workers under this Bill. With that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.


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