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Lord Wedderburn of Charlton: When I looked at this amendment I did not intend to speak on it, but in view of what the noble Lord, Lord Campbell of Alloway, said about other amendments I have drafted to which I am not now speaking, I think perhaps I should.
I am against this amendment, but the reason I am speaking is to give slightly different reasons from those given by the Minister and, indeed, slightly different from those given by my noble friend Lord McCarthy. I hope that these reasons will be considered when we come back to the matter, if we do, on Report. The noble Lord, Lord Campbell, went into his amendment and it was answered by the Minister carefully and in detail. Therefore, I refer to one or two Committee point details as well as more general matters.
The first point of some importance is that both the noble Lord, Lord Campbell of Alloway, and some of my noble friends seem sometimes to have read the amendment as though the "or" at the end of paragraph (a) was an "and". On the contrary, it is a disjunctive presentation. Either,
- "collective bargaining has failed or the award of a mandatory arbitral tribunal . . . has been ignored or rejected, or",
The first of those disjunctive propositions is quite meaningful and has the advantage, as my noble friend Lord McCarthy, said, of introducing the notion at least of mandatory arbitration, which is the subject of some of the later amendments standing in my name and that of my noble friends. I therefore take the opportunity to say that this amendment has nothing in common whatever with them in my view, but we shall deal with that when we come to them rather than now.
Lord Campbell of Alloway: I agree.
Lord Wedderburn of Charlton: The noble Lord, Lord Campbell, says that he agrees. I misunderstood him; I apologise. We shall come to our amendments when we come to them. I hope that no one will think that anything said in answer to any of this amendment has any relevance whatever to the later amendments.
Secondly, the ban on the right to strike in subsection (2) of Amendment No. 1 is absolute, given the conditions it requires. It has to be at the instigation of a trade union. I do not think that that is legally difficult. That is fairly clear, in my view. On the facts, you are told whether it is instigated by the union or not. It has to be with the intention of disrupting fire brigade services. That is much more questionable. That is not just a question of fact; that is also a mixed question of fact and legal inference.
The noble Lord who moved the amendment—I have known him for a very long time; I calculate that it is something like 40 years—must surely remember that, in a series of cases, the question has arisen under the law as it is. In a number of cases, I may summarise
the proposition properly as follows: that the intention of the industrial action was to gain improved conditions for the workers represented by the union that instigated it, and not necessarily to interfere with the services available for customers or third parties. Indeed, as was pointed out in one of them, alternative arrangements could well be made despite any disruption. That is a further question.I want to say something about the legal issues before we come to them, and here I anticipate them a little to save time. When one makes a proposition of law, one might think that it might be proper to give the sources on which one relies. There is a lot of law in the Bill, and a lot of law is left out of the Bill. I do not think that that is by design. I cannot tell—I was not there when it was drafted—but I think that a lot of law was left out by mistake.
Having said that, by way of interpolation, I shall quote the sources on which I rely, relating to what is regarded as the question of legal inference and rules to apply to the facts in regard to the intention of those who instigate industrial action. I rely on the case of Falconer v ASLEF in 1986, from Industrial Relations Law Reports 331, and on the judgments—both those in the majority, and the minority judgment of Lord Justice Peter Gibson—in the case of Millar v Bassey in 1994. I do not have the precise reference to the law reports and the entertainment media law reports with me.
I am sorry if Ministers find that excessive, but I ask them, when they rely on a legal proposition, equally to do us the courtesy of citing the source on which they rely. That is a normal convention in matters of law. I do so quite deliberately on this occasion, and I shall do so in future. I shall cite the cases and the sections and, where necessary, read them out when we come to Section 19 of the Fire Services Act and the Local Government Bill that is going through the House at the moment. It may be convenient not only to talk about them in some vague way, but to put them on the record. That is only reasonable.
The noble Lord, Lord Campbell of Alloway, will also surely know of the old convention, as I shall call it, that courts often apply; namely that a man—a person, in these modern times—is taken to intend the natural and probable consequences of his action. Does that maxim apply to the noble Lord's amendment? If so, it would go towards a meaning rather different from that applied in the cases that I have just cited. Subsection (2) of the amendment contains no mention of arbitration. It is that that makes it hopelessly at variance with the conventions of the International Labour Organisation.
I shall follow my rules. I do not just refer to the cases airily. I refer to convention 87 and the report of the freedom of association committee, summarised in the International Labour Organisation report on the committee of experts. The last one that I had was 1993's, but I apprehend that it is still accurate.
The committee reported and the governing body accepted that:
- "In the opinion of the Committee, the principle whereby the right to strike may be limited or prohibited in the public service or in essential services, whether public, semi-public or private, would become meaningless if the legislation defined the public service or essential services too broadly".
That goes very much to any notion of emergency, but the notion of emergency does not even appear in subsection (2) of the amendment. The committee went on to say that,
- "if strikes are restricted or prohibited in the public service or in essential services, appropriate guarantees must be afforded to protect workers who are thus denied one of the essential means of defending their occupational interests. Restrictions should be offset by adequate impartial and speedy conciliation and arbitration procedures, in which the parties concerned can take part at every stage and in which the awards should in all cases be binding on both parties".
That is a very important quotation from ILO literature. It is well known as a fundamental proposition, laid down well before 1993, and it has been a staple diet in ILO discussion ever since. It is also very relevant to the Government's response. Unless I misheard—and I apologise if I read Hansard and find that I am wrong—I do not believe that the Minister referred to the ILO. Some of the amendments that have been tabled refer to the ILO, and we intend to rely not only on that quotation but on a large number of other ILO documents, which I hope that the Home Office has the facilities to advise about. The point about failure to agree was raised by my noble friend Lady Turner. That is a point that will be relevant generally.
I conclude with a repetition—and I believe that it is my only repetition. I hope that nothing said about the amendment is regarded as in any way relevant to what is said about future amendments that have absolutely nothing in common with it. I shall be very glad if the Government encourage us to oppose Amendment No. 1.
Lord Campbell of Alloway: I wish to make one comment for the sake of clarification and, perhaps, to save a little time. The noble Lord, Lord Rooker, or any other noble Lord, may correct me if I am wrong. The Minister and I are concerned with a wholly exceptional situation in wholly exceptional circumstances, to provide a new appropriate regime to resolve disputes one way or another in this particular industry, and to avoid disruption. We differ as to the means, but we do not differ as to the object.
That being so, one must surely watch out for an academic approach of case law related to all sorts of other situations. I am not saying that the noble Lord, Lord Wedderburn, cannot refer to all the cases in Christendom—or in Islam, if there are any. However, with respect to the noble Lord, that seems wide of the target on which we should be focusing our opinion.
In the circumstances, I shall take the opportunity to read the contributions, particularly, of the noble Lord, Lord Rooker, the noble Baroness, Lady Turner of Camden, and the noble Lords, Lord Wedderburn and Lord McCarthy, and consider in what form I should
return to the matter on Report. I may return with an amendment to Clause 1(1)(a), when I have considered what has been said today. I beg leave to withdraw the amendment.Amendment, by leave, withdrawn.
4.45 p.m.
Baroness Hamwee moved Amendment No. 2:
- Page 1, line 6, at end insert—
The noble Baroness said: Broadly, my amendment takes the same direction as Amendment No. 4, tabled by the noble Baroness, Lady Hanham. I readily confess that hers has the virtue of far plainer and clearer language than mine, which is a little convoluted, but mine does not suggest that the Secretary of State should be the person who conducts a ballot. I see the logic of her proposal, but I feel that ballots would be better kept within the fire-fighters' own organisations.
The real importance of both the amendments is the secret ballot. One member one vote cast in secret is the cornerstone of good industrial relations, if relations have broken down to such an extent that there is a dispute. We are all aware of concerns about the effects of the FBU not having balloted on particular offers from employers, although the union conducted a secret ballot before starting strike action.
In the Commons, the Minister's objections to similar amendments seemed to be that there was no mechanism for a secret ballot of all fire brigade members, because they were not all members of the FBU. There were four or five unions involved that were not party to the negotiating body. The Minister also said that similar amendments would,
The amendment refers to the provisions of Clause 1(3), which require the Secretary of State to submit proposals to a negotiating body, if there is one. It is designed to enable the Secretary of State, if he imposes conditions, to do so knowing the level of support from the fire-fighters.
These are not easy amendments to draft. Perhaps because the Bill is so short, I found it hard to amend, not because there are no issues but because it was difficult to find the right language. If my amendment has technical problems, I hope that the Government can propose some other wording. The role of the secret ballot is hugely important, and we believe that it
"( ) The Secretary of State may make an order under subsection (1) only after any current offer to fire brigade members has been the subject of a secret postal ballot of such members within the previous three months, unless the order is to require fire brigade members to be given the opportunity to take part in a secret postal ballot on terms and conditions organised by an appropriate independent body."
"take time without getting anywhere".—[Official Report, Commons, 3/6/03; col. 76.]
He said that he was not clear what the Secretary of State would do with the results of a ballot. I find that a rather sad comment, as it seems to imply—although I am sure that it was not meant to—that discussion and negotiation were rejected.
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