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Lord Wedderburn of Charlton: I appreciate that what the Minister said is right. It is quite right that if they have a ballot thus far they are protected. If it becomes a contractual matter, they may be protected. We will come to that on Amendments Nos. 37 and 39. That is the separate issue we have raised in those amendments. That is why we have grouped the issues separately.

However, with respect, the Minister is wrong to say, that that is all there is to be said about the matter. If I depart from conditions of service under Clause 1(1)(a), I turn to an order under Clause 1(1)(b). If an order under Clause 1(1)(b) requires a fire authority to move specialist appliances or to close a station—we have been over this ground and the Minister said in previous debates that yes, this may involve the closure of a fire station—there is then a legal duty statutorily upon the fire authority to comply.

If the members, the union or whoever it is object and threaten to take action in the form of industrial action against that, there is no protection anywhere, neither in the 1992 Act nor, certainly at the moment, in this Act. That means that an order under this Act, which is all our amendments are concerned with, can and clearly does extend the illegality of industrial action. That is quite clear.

We will come to contractual terms when we come to the relevant amendments. I deeply regret, as the last intervention by the Minister indicates, that the Government are quite resolute in refusing all these amendments. The ones we shall come to need detain us only a very short time because, as I understand it, they are against pretty well all of them. I hope they are not against Amendment No. 37, but we shall come to that. On this amendment I have nothing to do but, as I was about to do a moment ago, beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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[Amendment No. 35 not moved.]

Lord Wedderburn of Charlton moved Amendment No. 36:

    Page 2, line 30, after first "service" insert "means contractual terms and conditions of employment and"

The noble Lord said: Amendment No. 36 touches on the question of the nature of the impact of the order made under Clause 1(1)(a) of the Bill. The Minister was absolutely right in stating that an order takes effect—he said immediately but it takes effect from whatever date it is to take effect from. Often, as he suggested in previous debates, it will be made only in the context of a crisis, so it will presumably take effect immediately.

What we ask in this amendment is for a change in the Bill in this respect. At present it appears to impose a statutory duty upon members of fire brigades to comply. I take the case of changes, perhaps, in shift pattern, changes in hours or changes in other duties, at any rate. Where that is so, a statutory duty imposes itself on all those to whom the conditions of service apply to conform and comply with the order.

There is an alternative way in which that can be expressed. I have already touched on it in previous discussions and shall summarise it in this way. An Act of Parliament can state, "This duty applies to you through the conditions of your contract". That is what is stated in Section 29 of the Employment Act 2002 and Section 1 of the Equal Pay Act 1970, which came into force in 1975. Parliament does not often do it but it does sometimes.

If the order came into effect, as we advance it should in Amendment No. 36, through the contractual terms of conditions of employment and not otherwise, although I have to admit that "not otherwise" will come up under a later amendment, the protection in Section 219 of the Trade Union and Labour Relations (Consolidation) Act 1992 would apply if the union induced a breach of contract because Section 219 applies in trade disputes and now applies where there has been a ballot—this amendment also has nothing to do with ballots—and where all the other conditions—there are far more conditions than that in the Act, of course—are satisfied and the Act is in furtherance or contemplation of a trade dispute. Then, if it is contractual it will fall within the words of Section 219 that there is no action in tort to be brought where it induces a breach of contract. That is quite different from inducing a breach of statute, as such.

I hope that the Minister will look again at all his stuff about giving people complete immunity. Making a thing not actionable in tort is a very specific legal protection. It does not protect you for breach of contract or breach of statutory duty; it protects you from actions in tort, civil wrong other than breach of contract.

So, Amendment No. 36 would provide some protection. It would not provide sufficient protection. It is the narrowest, smallest possible amendment that could do something to rectify the silences of the Bill. It

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would provide protection in industrial conflicts where at present protection is not provided for inducing a breach of contractual terms.

Grouped with Amendment No. 36 is Amendment No. 43. That amendment would add a new subsection which states rather more firmly:

    "(6A) To the extent that this Act or an order made under it places any duty upon a fire brigade member, it shall take effect as an obligation implied into his contract of employment and not otherwise".

That covers much the same ground as Amendment No. 36, but it goes on:

    "(6B) An act done by a member of a fire brigade in contemplation or furtherance of a trade dispute shall not constitute a breach of contract by reason only that it is in breach or contravention of or in non-compliance with this Act or any order made under this Act",

and it provides that "act" includes "deliberate omission".

The reason for the extra bit is quite clear. It relates to the case mentioned by my noble friend Lord McCarthy when he addressed the Committee recently.

In 1964 in the case of Rookes v Barnard [1964] AC 1129, which is etched upon my memory, the House of Lords Judicial Committee decided that not only inducing a breach of contract was unlawful means, but a breach of contract by itself—there, it was a breach of an employment contract—was equally unlawful means. So, to threaten a breach of contract, to engage in an agreement to break a contract, was a tort. Lawyers gave them the names of intimidation and conspiracy, but nothing turns on that. Therefore, what is done is that Amendment No. 39, as proposed new Section (6B), adds this: that that doctrine does not apply to make an actual breach of contract into unlawful means because, as it says, where it is,

    "in contemplation or furtherance of a trade dispute"

then by reason only that it is a breach or non-compliance with this Act it should not extend the unlawful means doctrine and make for a further illegality.

5 p.m.

Baroness Hamwee: Just to show that I am listening a little, the noble Lord referred to Amendment No. 39. Did he mean Amendment No. 43?

Lord Wedderburn of Charlton: I am very grateful to the noble Baroness. I meant Amendment No. 43. That was what I was reading. I am so sorry. It is my fault entirely. My notes were in a form where I got the matter wrong. I meant Amendment No. 43. The Committee will see that proposed new Sections (6A), (6B) and (6C), which are proposed in Amendment No. 43, are in the form that I have outlined.

I hope that something will be said about Amendment No. 43. But central to this moment is to move Amendment No. 36. I beg to move.

Lord Rooker: I shall certainly speak—as my noble friend did—to Amendments Nos. 36 and 43.

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As my noble friend said, Amendment No. 36 inserts some additional words into the definition of "conditions of service". The intention appears to be to limit that definition, and, therefore, to limit the order-making power in Clause 1(1)(a) to contractual terms and conditions of employment. I am not clear what effect that would have since any terms imposed by order under the Bill will be contractual in any case. It is difficult to know whether the amendment adds or removes anything. In some ways I have just made an argument for accepting my noble friend's amendment but I shall certainly not do so as to do so would be fraught with difficulty and would constitute uncharted waters. As I say, the imposition of any terms by order under the Bill is contractual anyway and therefore limiting the definition would not have any effect overall. As I do not know whether the amendment adds or removes anything, I shall reject it for the time being. My noble friend is always free to explore the matter at a later stage.

Amendment No. 43 makes any duties imposed by an order part of a fire-fighter's contract of employment. As I have just explained, any terms and conditions imposed by order under the Bill will be contractual anyway. Amendment No. 43 goes on to say that anything a fire-fighter does as part of an industrial dispute will not count as a breach of contract if the only thing he is doing is failing to comply with such an order.

We have legislation to which I have already referred—I realise this gets up my noble friend's nose but I have to refer to this legislation—which provides certain protection for industrial action taken after a proper ballot. Industrial action such as a strike is a breach of contract—I do not think anyone denies that—but the protection offered under the 1992 legislation means that someone on strike cannot be dismissed because of it. There is protection to that extent.

Amendment No. 43 would single out—as I follow its wording and my noble friend's speech—anything in an employment contract which derived from this Bill and would say that failing to do it was not even a breach of contract. I had a little trouble getting my head round that. It does not seem sensible law making to single out anything in an employment contract which derived from this Bill and to say that failing to do it was not a breach of contract. It would if it was in your contract. The order comes into effect immediately or on the date named. Generally speaking it comes into effect immediately. It would be part of the contract. There is no way of getting out of it. To do so would be a breach of contract. My noble friend seeks to include a measure in the Bill to say that if a measure in the employment contract is derived from this nasty Bill a special rule applies with the result that failing to do it is not counted as a breach of contract. That is not a serious point. It is not really about the finer points of contract law or employment law. It is certainly not relevant to the fire dispute or to the Bill. Clearly the

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amendment is intended to render at least some sorts of order under the Bill utterly useless. For that reason I must reject it.

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