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Lord Wedderburn of Charlton: I am grateful to the Minister for his explanations. He took Amendment No. 37 first and then Amendment No. 39.

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I do not quite understand. I share a lot of ground with the Minister, and, in a sense, I think that, when we read Hansard, we will find that our cases are not that divergent. I appreciate everything that the Minister said about redundancies, and I appreciate, as I said, that the Government intend or believe that any job losses can happen through natural wastage. We should not get into that in the technical sense of dismissal for redundancy. That is, as the Minister fairly said, an intention. It may or may not happen, and we hope that it does.

We put the specific phrase,

    "by reason of redundancy or otherwise",

into the amendment because, wherever there is loss of employment, it should be negotiated. We do not think that it should be imposed by order. We have a disagreement with the Government there, perhaps, but we would prefer that it be stated—perhaps, in view of what the Minister said, in words different from that of our amendment—that the order should not extend to the imposition of any changes in conditions that arise if there is a loss of employment.

Of course, I understand when the Minister says that there may be a desire to improve conditions for fire brigade members. I take it that he and I would agree that there would be no difficulty in negotiating that. There would be no need for an order for an improvement. If he wants an amendment that refers to changes in conditions on loss of employment to the detriment of fire brigade members, I would be happy to draft one in that form. We should, perhaps, come back to the matter on Report, as with so many others that we have mentioned this afternoon.

Our other amendment would add what the Minister called a restriction to the Bill, but it would establish in law what he, again, has given us as an intention—I think that that is what he said—on the part of Ministers. He said something along the lines that there were no plans to affect, by way of an order under Clause 1(1)(b), the conditions of service of members of the fire brigade directly or indirectly. He fairly accepted that there might be an order relating to appliances and special equipment that would impinge on conditions of service. There would be no difficulty about that; at the drop of a hat, draftsman could provide him with an order, on the one hand, saying that the appliances must be moved to wherever the Secretary of State says they must be moved to and, on the other hand, ordering a change in the conditions of service to accept that. There is no problem with that, as far as his power is concerned.

The Bill should provide a remedy for anyone in the case—the unintended case, it seems—that an order made under Clause 1(1)(b) directly or indirectly has an impact on conditions of service, which should be dealt with only under Clause 1(1)(a). In the practical, commonsense terms that the Minister is always advancing—not in legal terms—that is a real prospect, if any error is made.

One of the issues between us this afternoon has been whether the Government could possibly be wrong. Our arguments have been advanced on the basis that

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anyone can be wrong and that the Bill provides for a situation in which an error will have undesirable effects. The description in Clause 2(3) of what property means is an example of that. It should be stated clearly that property does not include contractual rights and duties. If it is not, a court will, whatever circumstances arise, necessarily have to accept that they are included in the term "property", as is the normal case.

I had some authorities, but I dare not cite them because some members of the Committee do not like legal authorities.

Lord Campbell of Alloway: Before the noble Lord sits down—

Lord Wedderburn of Charlton: May I just finish the sentence? There is plenty of authority to show that possessions—in a number of cases—or property include contractual rights and duties. That is all that Amendment No. 39 says. We are clarifying. I hope that the Minister will consider it again before Report.

The noble Lord wishes to ask a question. I am happy for him to do so.

Lord Campbell of Alloway: I am obliged to the noble Lord. Does he remember that I have already conceded—I forget how many days ago; it may have been at Second Reading—that a direction given to the fire authorities under Clause 1(1)(b) would inevitably, in certain circumstances, affect the terms and conditions of work. In order to comply with the requirement, such would be the position. So, there is nothing wrong in that concession. Is not that the correct approach?

Lord Wedderburn of Charlton: I take it that the noble Lord is speaking in favour of Amendment No. 39, which would exclude that possibility. I remember him making some such point in a different context, and I am grateful to him for his intervention and his support—if it was support.

I submit that, even to the uninstructed eye, it would seem that, given the meaning of "property" in the Bill, orders made under Clause 1(1)(b) could, even mistakenly, affect conditions of service in the way that the Minister described. It might be better if we made it clear that it should not. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 38 and 39 not moved.]

Baroness Turner of Camden moved Amendment No. 40:

    Page 3, line 5, at end insert—

"(3A) In the Trade Union and Labour Relations (Consolidation) Act 1992 (c. 52) after section 238A there is inserted—
Section 238A shall apply to a member of a fire brigade where he commits an act or is induced to commit an act which by virtue of the Fire Services Act 2003 is not actionable in tort.""

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The noble Baroness said: The amendment comes at the issue of the right to strike from a slightly different angle. The Minister has already stated on several occasions that there is no intention to interfere with it, and, of course, I accept what he says. It is dealt with at some length in the White Paper, which refers explicitly to Section 238A of the Trade Union and Labour Relations (Consolidation) Act 1992, as does the amendment.

Section 238A gives protection against dismissal. An employee is regarded as unfairly dismissed if the reason or, if there are more than one, the principal reason is that he took protected—lawful—industrial action; in other words, action for which all the appropriate moves, including balloting and everything else, had been taken.

The White Paper makes it clear that the Government have no plans to remove from employees in the fire and rescue service existing freedoms under the law to take industrial action, although they have said that they will keep the position under close review. As we indicated earlier and as I have said on previous occasions, this is not a popular measure. It has already occasioned a fair amount of disquiet among trade unionists, who wonder why it should have been thought necessary in the light of the recent agreement. I think it would, therefore, be useful if the amendment—or something like it, if the Government do not like its wording—were included in the Bill. It would be helpful to all concerned if the Government are anxious that the Bill should proceed as smoothly as possible, as I am sure that they are. I beg to move.

5.30 p.m.

Lord Campbell of Alloway: There is a gremlin in the amendment, which is contained in the phrase,

    "by virtue of the Fire Services Act 2003 is not actionable in tort".

That brings us right back to what we have been discussing for about three hours. Therein lies the gremlin. I would oppose the amendment on the grounds that it imports unmanageable complexity into a situation that at times will be an emergency situation.

Lord Wedderburn of Charlton: I apprehend that the noble Lord is on the wrong amendment. The words, "actionable in tort" do not appear in Amendment No. 40. Amendment No. 4 says that Section 238—

Lord Campbell of Alloway: We are on Amendment No. 40.

The Deputy Chairman of Committees (Lord Tordoff): I wonder whether the Grand Committee wishes me to read out the words of the amendment, since I only said, "At the end insert the words as printed on the Marshalled List". I perceive that the last sentence of the amendment says,

    "by virtue of the Fire Services Act 2003 is not actionable in tort".

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Lord Wedderburn of Charlton: I accept entirely that the words, "actionable in tort" end the sentence. I meant to say that Amendment No. 40 deals with acts that,

    "by virtue of the Fire Services Act 2003 is not actionable in tort".

In that respect, it incorporates the argument made on the previous amendment. I apologise if I was understood to say the opposite.

Section 238A protects an employee who takes protected industrial action under the 1992 Act where the reason or—if more than one—the principal reason for his dismissal is that the employee took protected industrial action. It may be that the words of Amendment No. 40 should simply say that—that Section 238A applies here where the objection and reason given for dismissal is some illegality under this legislation. The Minister may want to consider that, rather than using the words on the list.

As anyone will know who has had even remote contact with such a situation, the reason for a dismissal is very often disputed. The principal reason for a dismissal can be a matter of great argument, whether in grievance procedure, disciplinary procedure, employment tribunal or otherwise. Therefore, it would ease some of the concerns to which my noble friend referred in moving the amendment to have it restated—if it were to be drafted in such a way—that acts that are breaches of contract by reason of the Fire Services Bill plainly fall within Section 238A. Those concerns are real and worry a number of people who are involved and who will be affected under the Act.

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