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Baroness Turner of Camden: My Lords, this is an important amendment, as I am sure our Front Bench appreciates. Throughout the passage of the Bill, we have been told by the Minister on a number of occasions that it is not the intention of the Government to interfere with the right of members to take collective industrial action. We accept that this is the Government's intention.
For us, the trouble is that it has never been clear in the Bill, which has overriding powers to impose statutory duties, and so on. As has been explained by my noble friends, this can mean that individuals taking action can lose immunities provided under existing legislation after following the appropriate method of conducting ballots and such like. The amendments spell out the law under which they can take legal action at the moment.
I suggest that my noble friends on the Front Bench give this issue very serious consideration. There is concern among trade unionists and, in particular, fire brigade members with whom we have been in contact, that they are in danger of losing their right to take collective action despite the Government repeatedly saying that that is not their intention. I hope that these amendments will be considered seriously.
Lord McCarthy: My Lords, I want to make one point. I am sorry to rise when the Government clearly want to finish the business. As I said in Committee, I am concerned with the position of the workers themselves. If an employer is unable to carry out the instructions of the Secretary of State because of the action of his employees, he may wish to sanction or threaten them in some way. Indeed, if the action continues and the employer thinks that it is their fault and he wants to defend his position, quite legitimately, he may dismiss the employees.
Is that lawful? Is it the Government's intention that in an industrial tribunalbecause the union will fight the casean employer could say, "This is not a breach of contract. This is a breach of a statutory duty."? Is it the Government's intention that it will be correct that it is a breach of a statutory duty and that, therefore, workers can be dismissed because it is a fair dismissal and is not protected? Or are the Government saying, "No. We hope that the chairman will disregard what the employer says. This is covered by existing legislation."? Or, worst of all, are the Government saying, "Wait and see. We are not going to tell you. Try it out. See if you can get away with it."? Which of those three positions do the Government believe in?
The long and short of our position is that we remain of the view that these amendments are unnecessary. We continue to believe that if a dispute arises about something dealt with in an order made under the Bill, the ordinary operation of trades union law will offer fire brigade members protection. It is not part of our intentionI repeat, it is not our intentionto offer less protection or, as the amendments might offer, more protection. That is not the case. That is not what we are seeking to establish.
The amendments could cause confusion for other public sector workers who carry out functions governed by legislation and whose working conditions may inadvertently change as a result of directions or other changes in law. This would single out the firefighters to be treated differently from other groups of workers, which, in our view, would be equally unfair.
We do not seek to do anything which is not already a fact in law. We do not believe that the Bill changes matters in the way that has been argued in your Lordships' House tonight. Furthermore, we think that the amendments are unnecessary and, in short, that they could cause additional confusion.
I understand the concerns expressed by noble Lords during this and our earlier debate, but we think that those concerns are misplaced and take us no further. I hope that noble Lords will feel a little reassured, although I suspect that they will not since they have not been greatly reassured by almost anything that has been said at the Dispatch Box this evening. However, they should be reassured and I hope that the amendment will be withdrawn.
He said first that the amendment was unnecessary because the Trade Union Labour Relations (Consolidation) Act 1992 already protects action by firefighters in a trade disputepresumably he meant with a ballot. I have explained that it does not do so if it induces a breach of statutory duty. What is his answer to that? He did not say a word about statutory duties. Does he understand what a statutory duty is? Has he looked at any of the authorities which state that that is a wrong and is not protected by the legislation? So the first point was very odd.
The second point was the usual: "It is not our intention". This whinging cry from the Government that it is not their intention to do things under the Bill is one which the workers have heard and the unions have taken note of. They are not interested in statements of intention if they are not reflected in the law. The Government are responsible for the Bill, not their misunderstandings and intentions as to the law. They misunderstand and refuse to understand the point about statutory duty.
As for other public sector workers who inadvertently bring about changes in matters regulated by statute, my noble friend should take a look at the books. There are workers who can risk inducing breach of statutory obligations and they are specially dealt with. There is the possibility that such a liability can arise under the telecommunications legislation. I have already explained that it is possible that such a liability could arise under the legislation applying to prison officers. Those are all listed in the books and we do not find public sector workers in a special category whose legal right to take industrial action is limited by their obligations under statutes which create statutory duties. If the Minister has other illustrations perhaps he will rise and give them to noble Lords, but he has not. This is all claptrap which would not pass an entrance examination, let alone a first year paper.
There is such a thing as the wrong of inducing a breach of statutory duty that is not protected by the legislation on strikes. Tonight I have no alternative but to withdraw the amendment, but I tell my noble friends on the Front Bench, in all friendship, that they are making a ghastly mistake in putting this before the trade union movement. If they want to inflame the situation, they will go on with their obdurate failure to understand the simplest possible point. I do not know of any other simple English phrase that will explain it: inducing breach of contract is protected; inducing breach of statutory duty is not.
Undoubtedly we shall come back to these issues on Third Reading. It does not matter how many noble Lords go into the Lobby who have spent their time not in the debate, but in the bar or in their rooms, so long as the point is put to the legislature and history records whether they refuse to recognise this point. For tonight I beg leave to withdraw the amendment.
The noble Lord said: My Lords, as yet, the Government have refused to accept amendments to Clause 1 which proscribe the exercise of powers by the Secretary of State to impose conditions of service by decree when there is no emergency situation, such as a terrorist attack or the immediate threat of such an attack, within the definition of Amendment No. 2, which was withdrawn on the first day of the Report stage. It is a bone of contention which arose on Second
I do not understand why it is said that the noble Lord, Lord Rooker, has not made himself plain. I shall not quote references but, at columns 1157, 1158, 1165 and 1166 of Hansard on the second day on Report, he made the construction of Clause 1(1), which governs the exercise of powers by the Secretary of State, perfectly precise and clear. The purpose of the Bill is to enable a line to be drawn as a longstopat any time in any future dispute that could not be the subject of challenge, irrespective of whether or not there was an emergency situation.
The noble Lord, Lord Rooker, used the term "caveat". There was no need to do so. He has made his position totally plain. It is that position which goes to the essence of why we wish to amend Clause 1 and why, if those amendments are not accepted, to move that Clause 1 should not stand part of the Bill.
There is not an emergency situation today; there has not been one for some time. According to the noble Lord, Lord Rooker, excellent working arrangements with the union are going well and timetables have been agreed. When there is no such emergency, to seek to impose, or threaten to impose, conditions of service by decree, as a longstop to collective bargaining, is wholly unacceptable and could well provoke further disruptive industrial action. It would appear that the noble Lord, Lord Rooker, accepted on the first day on ReportI think with methat the ghost of the withdrawal of services has now been laid, at all events in a state of emergency.
I have been advised to give notice that Amendments Nos. 2 and 4, as tabled on the first day on Report, are to be re-tabled on Third Reading. They will seek to limit the use of the powers under Clause 1 to impose, or to threaten to impose, conditions of service by decree only in a state of emergency, as defined, and will require consultation before introduction instructions are given to the fire authorities when there is no such state of emergency. If the amendments are not accepted, I have been advised to give notice that then, and only then, would the amendment to leave out Clause 1 be moved, and to explain that the other amendments to Clause 1Amendments Nos. 3, 5, 6 and 7which were withdrawn on day one of the Report stage, shall not be retabled on Third Reading. The House will face a clear-cut and straightforward issue. On that basis, I shall not move the amendment.