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Lord Wedderburn of Charlton moved Amendment No. 30:



"( ) For the avoidance of doubt, section 244(2) of the Trade Union and Labour Relations (Consolidation) Act 1992 (c. 52) (meaning of "trade dispute" in Part V) is declared to apply to a case in which a dispute relates wholly or mainly to matters which are the subject of an order or proposals for an order made by the Secretary of State under this Act affecting the working conditions of members of a fire brigade."

The noble Lord said: My Lords, Amendment No. 30 deals with a separate and very serious point that was vigorously debated in Grand Committee. It is important that I should put it on record now, on Report, since more people are likely to cast an eye over the pages of Report than were ever likely to look at Grand Committee. The advantage of having a Bill in Grand Committee for those who do not want anyone to understand what is going on is that no one ever reads that part of Hansard. So let us see what this is about.

There is a doubt, which this amendment attempts to cure, about whether Section 244(2)(b) of the 1992 Act applies in a case which might be a dispute between the Fire Brigades Union and the employers and the Minister in the sense that he has made an order of new conditions of service or to close down fire stations, and whether that is likely to be arguably a trade dispute.

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The legal definition of a trade dispute is that it must be a dispute between workers and their employers. Section 244(2)(b), which this amendment would apply to the Bill, states:


    "A dispute between a Minister of the Crown and any workers shall, notwithstanding that he is not the employer of those workers, be treated as a dispute between workers and their employer if the dispute relates to matters which. . .


    (b) cannot be settled without him exercising a power conferred on him by or under an enactment".

The Secretary of State could propose or make an order under the Bill when it is enacted and the firefighters' trade union, on behalf of its members, could be engaged in a dispute in opposition to the terms of that order about modified conditions of service which are applied by the employers—for example, where employers put into effect an order setting new conditions of service which, as we have seen, they will not allow to go to arbitration, instead insisting on new patterns of work, new rosters, new hours or closing stations.

Insofar as the dispute is between workers and employers, it will be a trade dispute, but it manifestly could be settled without the intervention of the Secretary of State. The employers might be willing to settle a dispute on terms that are different from the order the Minister wishes to impose. That is the justification we have seen tonight and in Grand Committee for the power to have the order: that they might make what the noble Lord, Lord Rooker, called in Grand Committee "sweetheart deals".

It could be argued that it was really a dispute with the Minister, which has been made in a number of parallel cases in the courts. That would exclude it from being a trade dispute—not because it had the wrong content about employment conditions, as in various cases, one of which the noble Lord, Lord Rooker, cited in Grand Committee—those were irrelevant—but because it was alleged to have the wrong parties. The Minister suggested in Committee that if an order had been made, only he could settle the dispute or only he could impose a settlement.

Section 244(2)(b) does not refer to a case where the Minister disapproves of a settlement made by the parties. It relates to where the dispute cannot be settled except by the Minister using his power. Section 244(2)(b) does not refer to a case where the Minister disapproves of a sweetheart deal or draws a line under a dispute which the parties could, left to themselves, settle without his intervention. It is about a case where, as one puts it, his approval is necessary to settle a claim otherwise it cannot be settled.

That is why there is at least a doubt—more than that, in my view—whether the section would apply to a case where the parties could settle without the Minister's intervention in a dispute that affects working conditions of members of a fire brigade. Without this amendment, or something like it, those workers might be prevented relying on the defences normally available in a trade dispute which otherwise would qualify as a trade dispute by reason of its

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content, because it could be alleged that it had the wrong parties—union and Minister—as against union and employer.

There is no reason why this defect should not be cured in the Bill. It is another case of the Secretary of State's order-making power being a root cause for why the normal protections for ballot-supported industrial action could be thrown into grave doubt by the Bill.

This problem is separate from the problem we raised in previous amendments. To refuse to face it is not a sensible way of approaching our industrial law. It is our hope that the Government, having had time to consider the matter further, after Grand Committee, will accept at least the thrust of the amendment. I beg to move.

Lord Bassam of Brighton: My Lords, the noble Lord, Lord Wedderburn, does Grand Committee a disservice. I know that some people hang on every word that is printed in Hansard following Grand Committee deliberations. Indeed, I have had many letters and correspondence from people who have believed—or perhaps questioned—every word that has been spoken.

This issue has, as the noble Lord said, been debated at some length, and our position is spelt out quite clearly on the record. But it is only right that I repeat it this evening.

The nub of the Government's position remains this: we do not believe that the amendment is necessary. We continue to believe that if a dispute arises about something dealt with in an order made under this Bill, the ordinary operation of the trades union law will offer fire brigade members protection.

In our view, there are only two possibilities. The first is that fire brigade members are in dispute with their employers. They hope that their employers will pay what the order requires and then some more besides. Providing the union and its members follow the requirements of the legislation, any industrial action that they take in pursuit of their dispute will of course be afforded the usual protection.

The second possibility is that fire brigade members are in dispute with the Secretary of State, because it is he or she who has made the order and they are seeking to change his or her mind about it. In that case, the dispute would fall within Section 244(2) of the Trade Union and Labour Relations (Consolidation) Act. Again, providing the union and its members follow the requirements of the legislation, any industrial action that they take in pursuit of their dispute will be given the usual protection.

We do not believe that there is some other, third circumstance in which fire brigade members can be in dispute, but somehow neither with their employer nor with the Secretary of State. Indeed, the noble Lord really gave voice only to those two instances himself. We do not think that they will find themselves outside the protection of the law on industrial action.

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The noble Lord will undoubtedly say that the debate has not been listened to by the Government. However, we have listened. The fact that we do not agree with him and other noble Lords who have pressed these and similar related points does not mean that we do not listen; it simply means that we do not agree with their interpretation. That is simply and plainly as we see it. I hope that he will withdraw his amendment and that he does not find it necessary to bring it back at Third Reading.

11 p.m.

Lord Wedderburn of Charlton: My Lords, I got from my noble friend that I had put forward certain arguments and that he did not think that I was right—that he did not agree, but he did not give me any reason why he did not agree, except that the usual protections would apply. No doubt the usual protections will apply, but he said that there might be a dispute with the employers or with the Minister. I assure him that I do not want to be holding the brief for a union that has to accept that its dispute is with the Minister, because then it will need Section 244(2)(b), which states that the dispute cannot be settled without him exercising a power conferred on him by an enactment.

Such a dispute about conditions of service with employers could, of course, be settled without an order. The whole point of the Bill is that the Minister will say, "I don't like the settlement that you're making", or, to be quite concrete and realistic about the present situation, "I don't like the interpretation that you're putting on your settlement. I don't like the way that you're interpreting the pay rises or our other arrangements. I'm going to make an order". That is his choice. It is not a dispute that cannot be settled without his using his powers under the enactment.

Unless the Bill states that Section 244(2)(b) will apply in such a situation, there is the greatest possibility of what I envisage. There is certainly a doubt. The noble Lord mentioned people who had written to him. I wish that he would read out some of those letters. Then we would know who had written them. Whether they are as ignorant as those on the Government Front Bench seem to be about the basics of trade dispute law would become clear.

It really just does not do to spend the whole evening, until 11 o'clock, sitting on the Front Bench saying, "That is not our intention. We don't agree", without argument. As my noble friend Lord McCarthy said, this evening we have heard no argument. At least in Grand Committee we got some arguments from the noble Lord, Lord Rooker. He did not respect our amendments, or us, but at least he made some arguments. We have tried to say why they were bad ones tonight, but we have not had any extra arguments. The state of Denmark without the king has not responded with a clarion call from the Front Bench. It has merely said, "We don't think so", or, "That is not our intention". We are saying merely, "Put your intentions where your mouth is going to be heard by the courts"; that is, in the Bill.

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Whether we return to the issue in this form at Third Reading is a matter for consideration. But the Government need not believe that we shall hear again with happiness the noble Lord, Lord Bassam, saying that it is only right that he should repeat what was said previously. We ask the Government not to repeat at Third Reading but to think; not merely to state again their intentions but to state what they want the law to be. The amendment is crucial as regards the practical

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application of the Bill in the courts if action is ever brought. A responsible legislature should envisage that and make provision for it.

For now, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 31 not moved.]

        House adjourned at six minutes past eleven o'clock.


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