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Earl Attlee: My Lords, the noble Lord has given us a virtuoso performance—one that I could not possibly match—but perhaps he could tell the House what he is going to do with his amendment.

Lord Wedderburn of Charlton: My Lords, noble Lords on the Labour Benches will notice that the Opposition do not really like this debate at all and want to use every procedural device they can think of to get it out of the way because it is embarrassing to them. I shall now come to a conclusion.

For anyone to suggest that the Bill as drafted does not produce a serious risk of extra liability to the firefighters' union is false. I rarely say that a proposition of law is false, but that one is false.

Let us remember that the issue was never discussed in the Commons. People who want to shut up the debate do not care that it was never discussed there. They do not think much about the House of Commons, but perhaps that is a good thing given its present state. For any Labour Member of either House to vote against such an amendment as a belt-and-braces operation would be a betrayal. For any Peer of any party to vote against it would be to support the policy of militarising the fire service. It would be a provocation, given the present delicate balance of our negotiations, which we watch with anxiety.

As the lower House has not been able to debate the matter, I hope that noble Lords will see that what happens to the liberties of firefighters is in their hands. It is because of that that I am obliged to press the amendment to see at least what those who remain in the building have to say about it.

3 Nov 2003 : Column 668

11.41 p.m.

On Question, Whether the said amendment (No. 3) shall be agreed to?

Their Lordships divided: Contents, 8; Not-Contents, 69.

Division No. 5


Addington, L.
Davies of Coity, L.
Hamwee, B.
Hoyle, L.
McCarthy, L. [Teller]
Roper, L.
Turner of Camden, B. [Teller]
Wedderburn of Charlton, L.


Acton, L.
Amos, B. (Lord President)
Andrews, B.
Ashton of Upholland, B.
Attlee, E.
Bach, L.
Bassam of Brighton, L.
Bernstein of Craigweil, L.
Billingham, B.
Brennan, L.
Brooke of Alverthorpe, L.
Burlison, L.
Byford, B.
Campbell of Alloway, L.
Carter, L.
Chandos, V.
Colwyn, L.
Cope of Berkeley, L.
Crawley, B. [Teller]
Desai, L.
Dixon, L.
Dubs, L.
Elder, L.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Fookes, B.
Gale, B.
Gibson of Market Rasen, B.
Goldsmith, L.
Gordon of Strathblane, L.
Goudie, B.
Gould of Potternewton, B.
Grocott, L. [Teller]
Hanham, B.
Harris of Haringey, L.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Jay of Paddington, B.
Jones, L.
Lofthouse of Pontefract, L.
Macdonald of Tradeston, L.
McIntosh of Haringey, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
Massey of Darwen, B.
Montrose, D.
Morgan, L.
Onslow, E.
Pendry, L.
Pitkeathley, B.
Radice, L.
Richard, L.
Rooker, L.
Scotland of Asthal, B.
Simon, V.
Skelmersdale, L.
Symons of Vernham Dean, B.
Turnberg, L.
Warner, L.
Whitaker, B.
Whitty, L.
Woolmer of Leeds, L.
Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.

3 Nov 2003 : Column 668

11.51 p.m.

Lord Wedderburn of Charlton moved Amendment No. 4:

    Page 2, line 29, at end insert—

"(10) A statutory instrument containing an order under this section shall take effect in respect of statutory rights and obligations imposed or created by it—
(a) when made under subsection (1)(a), as imposing contractual rights and duties binding between the relevant fire brigade members and their employers; and
(b) when made under subsection (1)(b), as imposing duties on fire authorities owed to the Secretary of State, enforceable by him and not by or against any other person."

3 Nov 2003 : Column 669

The noble Lord said: My Lords, it is now 10 minutes to midnight. The Government and Opposition Front Benches have had their way. It is strange to see a Labour Front Bench voting with the Tories. It does not happen all that often. Now, they have an amendment that, I thought, they might agree to, even if they cannot accept the first one.

I shall say one general thing. I do not understand why noble Lords, many of whom have spent some time in the Labour and trade union movement and have read quite a lot, find it all so difficult. There is some inhibition on their understanding of what is going on. They seem not to ask themselves the sort of questions that they would ask about things generally. I shall try to deal with the amendment in four minutes—very slowly.

The debate tonight has—I must tell your Lordships—reminded me of my German friends, who used to tell a story about their chancellor, Herr Kohl. He lost his official car and had to take a taxi. Gazing at him through the mist, the taxi driver said, "It's a long journey. I will tell you a story. It's about Herr Kohl, the chancellor". The other said, "I am Chancellor Kohl". "Ah", said the taxi driver, "I shall tell it to you very, very slowly". Tonight, I feel as though I must almost come to a grinding halt in my explanation to get people to understand something that trade union students whom I have been in seminars with for 40 years understand at the drop of a hat. They have not forgotten their experience in the workplace.

The amendment says, first, that, if a statutory instrument is made under the clause dealing with conditions of service, it shall operate as a contractual matter. I know that the Government say that that is their intention and that they think that that is how it will work, but they seem totally blind to the ability of lawyers—including the judiciary—to take a different view. All this does is say, "That's your intention. That's what we want. We'll put it in the Bill". If they do not accept that, they must have some other reason. No one in their right mind would think that it is totally impossible for it to be treated as a statutory duty and not a contractual duty.

The simple reason is that when a statute wants an obligation arising from it, or an order made under it, to operate through the contract, it says so. That great Act introduced by my friend Barbara Castle—the Equal Pay Act—states that the obligation to have an equal pay term is in the contract of employment. It was made clear. The Government did not rest on some vague notion as to what the courts might say.

Therefore, the first part of the amendment is common ground. The matter should be made clear in the Bill. We know what is in the Government's mind, which is the minds of all honourable men. But why not say it on paper? The second part of the amendment is more difficult now. I was going to say that orders made

3 Nov 2003 : Column 670

under Clause 1(1)(b) of the Bill—or the Act as it will be—also should be seen as imposing special duties that very probably would not infringe the right of strike. I say, "very probably", because that is my view, but at least it would be something. It states that an order, such as an order closing fire stations or an order transferring equipment from one district to another—an example taken by the Minister—shall operate as a duty owed to the Secretary of State. What is wrong with that? He is the person who makes it; he is the person looking after what the Minister has called the public safety. So it is a duty to the Secretary of State. The person to enforce the duty is him. That cuts out—or, arguably, almost certainly cuts out, which is the correct way of putting it—actions by anyone else.

What is wrong with that? Do the Government want actions for injunctions brought by other fire authorities and by persons with private proprietary interests? Is that what they want to enforce their orders under Clause 1(1)(b)? I did not think so. Do the Government want to introduce the new regime of orders being enforced by all kinds of people on public sector workers? We do not want that. Public sector workers are entitled to their rights under the ILO Convention 151.

Therefore, as regards orders to fire authorities, the fire authority must obey the Secretary of State as is the rule of law. If it does not and if any legal action is to be brought, let it be brought by the Secretary of State. We trust him to bring the action where the public interest is involved. He will not bring actions which simply protect or aim to protect some small proprietary interest. He will look after those proprietary interests in his discretion. In fact, we all know that this is theoretical—it is the only theoretical part that I have advanced—because he would simply telephone the fire authority and say, "What are you doing? You put my order into effect. If you don't, I could get a court order".

Therefore, I hope that our second amendment is acceptable to the Government. The first part, under Clause 1(1)(a), would be contractual. The second part, under Clause 1(1)(b), would be enforcement by the Secretary of State. That would cure the doubt, which, although it has not reached the ears of some Ministers, has reached others and will increasingly reach those who look at the Bill in its present deplorable state. I beg to move.

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