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Lord Rooker: My Lords, as my noble friend says, Amendment No. 4 seeks to do two things. First, it provides that the orders under Clause 1(1)(a) shall take effect as imposing binding contractual rights between the firefighter and the fire authority. Secondly, it provides that the order under Clause 1(1)(b) will take effect by imposing duties on the fire authorities which are owed to the Secretary of State and enforceable only by him. We

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have been around this course before. I have stated previously that, in our view, the amendments would have the effect that I have just outlined and are therefore unnecessary and inappropriate.

First, any order made under Clause 1(1)(a) will already fix or modify the firefighters' conditions of service. That is the whole purpose of the function. Firefighters' contracts of employment will be changed by operation of the law imposing binding contractual rights on both parties. For example, a firefighter would be able to bring a claim against his employing authority if it failed to pay him the additional pay set out in the order. We could get into a position where the Secretary of State is forced, in the circumstances I explained earlier that we do not want to see arise, to ensure that firefighters get the pay rise that the dispute then taking place prevents them getting. If they do not like it, they would still be able to bring a claim against the employing authority if it failed to pay the additional money set out in the order. So the amendment is absolutely unnecessary because the Bill already provides for this and I do not think that the position can be contradicted.

Similarly, Clause 1(9) already provides that a fire authority shall have a duty to comply with directions contained in orders made under the Bill. It is made explicit on the face of the Bill that the fire authority shall have that duty. However, I accept that the amendment goes further, as it did in Grand Committee and probably on Report. It provides that only the Secretary of State can enforce such a duty. We do not think it right to restrict the Bill in this way. I shall repeat an example which I believe I gave in Committee.

If the Secretary of State is minded to make an order requiring one fire authority to use certain facilities provided by a second fire authority, that second authority might well make arrangements or incur expenditure in anticipation of the move taking place. Where the first authority refuses to comply with the Secretary of State's direction, it ought and should be possible for the second authority, if it wishes, to seek an order by way of judicial review requiring the compliance of the first authority. I cannot see anything wrong with that; we are talking here about fire authorities.

As I have said, I accept that behind the amendment lies exactly the same issue, although my noble friend did not make much of it in the short time he allowed himself to speak to it. It is the exactly same issue that has been repeated several times in your Lordships' House; that is, the accusation that the Bill will create statutory duties which may allow injunctions to be obtained in the event of industrial action by firefighters. I repeat: Nick Raynsford and I corresponded with my noble friend. My noble friend has met the Minister. I think that we have responded to the points made in Amendment No. 3 and I shall not repeat them.

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We have given very careful consideration to this issue. It has been raised before and it is covered by the point I made earlier: I have asked officials whether there was a possibility that we could absorb any of the amendments to satisfy noble Lords, but without causing problems for the Bill or the way that it is intended to operate. However, for the reasons I have set out before noble Lords and in correspondence, we continue to believe that the amendments are not required. Their key bones are already included in the Bill and therefore I respectfully ask my noble friend to withdraw his amendment.

Midnight

Lord Wedderburn of Charlton: My Lords, one has to put some points on the record. I have not had any correspondence with the Minister on this, and I have not had much correspondence with my right honourable friend Mr Raynsford. I had a letter from him sent by fax saying that it was such a pity that we could not have further meetings and correspondence, but the Bill had been brought forward by a week. Everything had to stop for what I thought was going to be a prolonged negotiation about the legal position. I did not even have a chance to put anything on paper until this Saturday and Sunday.

I say this to the Minister: I ask the Government to publish the exchange of memoranda on this matter, because they deal with this issue as well. I did not refer to it in my speech, but this matter is dealt with at length.

I turn now to the two points made by my noble friend. He said that it is unnecessary to put in the Bill the point that orders on conditions of service operate as contractual obligations. Why is that unnecessary? My noble friend responded by saying that such an order would modify the conditions of service. That does not necessarily make it contractual. There are dozens of regulations which affect conditions of service and which create statutory duties; the right to redress for unfair dismissal is created by a statutory right and duty. It does not become part of the contract of service, but on my noble friend's argument, it should do so.

Health and safety regulations confer rights and duties on workers—it should not be forgotten that duties on workers are created by safety regulations. In some systems of law, they operate through the contract of service. The French regard it as bizarre, but that is not the case in our system. But in our system they operate as statutory duties. If what the Minister said were right, there would be huge new chapters in the contract books, but they are not there. We are asking him to do what Barbara Castle did with the Equal Pay Act and make it clear that this falls under contract, not statutory duty.

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The Minister then referred to the duties imposed under Clause 1(9) as statutory duties on the fire authority to obey directions from the Deputy Prime Minister. He always gives the example of a pay rise. If we are considering theoretical cases, it is not really very likely that industrial action would be organised against an order imposing a pay rise—but that is what we are talking about.

We are discussing directions which order fire authorities to do things with their property, with their arrangements, with their control rooms, with all kinds of arrangements for the fire service which are at the centre of current negotiations—I go no further than that, but it is a worrying feature—and to close fire stations. That is what this is about.

The Minister said that if they do not close stations when they are told to do so, another authority could apply for judicial review. Does he not know the difference—he obviously does not because it is not in the legal advice—between judicial review in public law and an action for an injunction under the text books on all the regulations and law applying to private law? They overlap these days, but judicial review has got nothing to do with it.

Yes, there is a statutory duty under Clause 1(9) for the fire authority to comply with directions, but if you have ever been anywhere near a court in such a case you will realise that that is the beginning of the case, not the end. The court will ask, "To whom is this duty owed?" "By whom is it enforceable?" And, "If it is enforceable by that plaintiff or that claimant, by what remedies?" There is not a word about any of that because the legal advice is faulty.

Noble Lords on the Front Bench can shake their heads. No doubt they are great experts on whether the legal advice could not possibly be faulty, but what silly nonsense. Any advice can be faulty. I have given advice that I have recognised afterwards had a fault in it. But they do not believe they can possibly be wrong.

As my noble friend Lord McCarthy said, anyone with any knowledge of the subject—and many noble Lords on this side do have knowledge of the subject, as much as they pretend not to understand—will know that similar things were said in the 1870s. In 1875 the TUC nearly wound up its parliamentary committee because it received assurances such as those advanced today that the Government were right; that the legislation left no threat to trade unions. In 1900 there was the Taff Vale case and similar cases in subsequent years.

All this has been said before; we have heard it all before. The Government are making the same mistake as before and the amendment would save them. But they will go down in history as a government who did not care enough to think that they might be wrong. If there is a doubt as to whether they are wrong, injunctions will lie under the Bill as it stands.

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However, it is now ten minutes past twelve. We have had a jolly debate. The firefighters will suffer. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Campbell of Alloway moved Amendment No. 5:


    Leave out Clause 1.

The noble Lord said: My Lords, I have spoken to the amendment already. No noble Lord who has been present throughout the debate has spoken in favour of the Bill, other than the noble Lord, Lord Rooker. It is a bad Bill in its construction.

Lord Rooker: My Lords, does the noble Lord intend to divide the House or not? He has already spoken to the amendment.

Lord Campbell of Alloway: My Lords, it is a bad Bill. As a matter of construction, it no longer reflects the true intentions of the Government. Not only is it a blunder, it will exacerbate further strife. The amendment would remove Clause 1, which goes to the heart of the Bill. I beg to move.

12.10 a.m.

On Question, Whether the said amendment (No. 5) shall be agreed to?

Their Lordships divided: Contents, 10; Not-Contents, 60.


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