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The Minister approached our position in her remarks. There are issues to which we may want to return on Report. As the right reverend Prelate said, some way should be found, however qualified the wording, on consent as opposed to consultation.
We shall think carefully about the Minister's comments. She said that, on the one hand, she did not want to give right of consent to a patient but that, on the other, the NHS could not force a patient to do something. Legally, there was no great issue about the patient being given the right to consent, since it is implicit in the way in which the NHS provides its services. I shall leave that to the department's lawyers to consider in the next week or two. I beg leave to withdraw the amendment.
The noble Lord said: I actually have read this Bill. In moving this amendment, by leave, I shall also speak to all the other amendments, each of which shall be moved formally in due course, to afford an opportunity for any Member of the Committee who wishes to speak to do so.
These amendments are designed to meet certain criticisms of drafting made on Second Reading. However, at the outset, it has to be asserted that the Bill can have no application to the Fire Brigades Union dispute, which by the good offices of the TUC and of the Deputy Prime Minister has returned to negotiation under the aegis of ACAS. It is the hope that some resolution to this complex disputepay, conditions of work, over-manning, restrictive practices, restructuring of the industrymay be found short of a resolution imposed by government. This Bill in no way is concerned with the merits of any dispute, only with the means of resolution.
Amendment No. 4 to Clause 3 may apply only where disruption arises as a result of some future dispute and only after resort to ACAS has been declined or failed to afford mandatory independent arbitration, independent of government, to which the Government would be subservient on the award. To save any repetition and time, reference can be made to the debate on Second Reading, at cols. 116768 of the Official Report.
In context with all these amendments, note has to be taken of an objection to the intendment of the Bill taken by the Government, on 27th January, at col. 1127 of the Official Report, which is a total misconception. It was based on the assumption that ACAS was "an adequate arbitration system" on which the Government were happy to rely. Because of that, there was no need to introduce any arbitral system independent of government, and in particular one such as proposed by the Bill. Members of the Committee who have attended this debate will know that ACAS affords only the silken ladder of voluntary conciliation. It is not an arbitral system at all. The disputes in public services identified in Clause 3 of the Bill may not be so readily resolved by a series of ad hoc, imposed government decrees save in wholly exceptional circumstances. Mandatory arbitration independent of government as proposed by the Bill affords the last resort to resolution short of imposed resolution by government decree.
Amendments Nos. 1, 2 and 3 to Clause 2 are designed to meet the criticisms of the noble Lord, Lord McIntosh of Haringeywho I am delighted to see in his placeon Second Reading, at cols. 117475 of the Official Report. The criticisms were essentially that Clause 2 was too widely drafted and open to evasion and wanted clarification.
Clause 1 applies to primary and secondary action by Amendment No. 1. Amendment No. 1 applies to primary or secondary action taken with the intention to disrupt public services at the behest of the trade union. There are two elements: intention to disrupt; and at the behest of the trade union.
Amendment No. 2 applies to avoid evasion, it being for the High Court to adjudicate on the civil standard of proof, on the facts of each case. Since the turn of the 19th century, the courts have made a series of decisions on trade union law, which inevitably has a political significance. As to economic significance, the courts have adjudicated, and adjudicate, on competition, restrictive practices and monopolies. The jurisdiction conferred by Clause 2 as amended is not open to criticism on either of these reasons, albeit I think that such was the opinion of the noble Lord, Lord McIntosh.
As to Amendment No. 3, it safeguards the individual entitlement to withdraw or withhold labour. There is no reason why the Central Arbitration Committee should not be given statutory powers to act as an independent arbitral tribunal under Clause 1 independent of government. No other tribunal acceptable to the trades unions and the employers has as yet been proposed to act only as a long stop where conciliation has failed, and only
Lord Roberts of Conwy: I compliment my noble friend on his attempt in these amendments to meet the criticisms levelled at the Bill during its Second Reading. I am bound to say that my noble friend's Bill is a very timely reminder to the Government of the difficulties they face, and not just with the firemen's union. I have to remind the Committee that the days lost through strikes soared to a 12- year high last year, with 1.32 million days lost, compared with 235,000 in 1997, when the Government came into office. So it is wise to think along the lines that my noble friend has thought in this Bill.
Many of those days lost were in the public services, among fire service, rail and Underground workers and in local government. In my view, the outlook for the future is not all that good. There is a new generation of union leaders coming to the front line, pledged to go on the offensive, we are told. The noble Lord, Lord McIntosh, will be familiar with the names and attitudes of Mr Derek Simpson of Amicus, Mick Rix of ASLEF and Bob Crow of the RMT. I understand that Mr Bill Morris of the TGWU is due to retire shortly and that he, too, may be succeeded by a more militant leader. That is part of the background to the Bill.
The Government are clearly prepared to be firm. They showed that on 28th January when the Deputy Prime Minister stated that he would repeal Section 19 of the Fire Services Act 1947, which would put the management of the Fire Service in local hands. As we know, the union sought judicial review but that did not proceed very far. The Deputy Prime Minister also said that he would seek new powers of direction over the Fire Service after consultation. That would involve in effect the restoration of the provisions in the 1947 Act, repealed in 1959, which allowed the Secretary of State to specify pay, terms and conditions in the Fire Service. At the time it sounded like a threat to get the union back to the negotiating table but I understand that the Government have tabled amendments to the Local Government Bill in another place to enable local authorities to close fire stations and reduce numbers without central government permission. So the Government clearly mean business.
"(3) The individual entitlement to withdraw or withhold labour if exercised as such is to be respected."