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Lord Rooker: Concerns come from lack of clarity. I can spell out in non-legalistic terms that fire-fighters are covered by Section 238A of the 1992 legislation. I have had a few clashes with parliamentary counsel since I have been a Minister. However, I have been over to the counsel's HQ—the inner sanctum—with some of my colleagues to learn how it works, and came away as a real fan. People in that office always said to me that I should not allow anyone to persuade me to legislate for the same thing twice, because someone somewhere would take one part of what I had done in a way that I did not expect. They told me to legislate for things only on one occasion.

This is a classic case of that issue. I can actually say that the amendment says that Section 238A shall apply to members of the fire brigade. We do not need Section 238B to tell us that the fire brigade is covered by Section 238A. We do not need that—the brigade is covered by the protection under Section 238A.

If an order was made under Clause 1(1)(a) and union members decided that they did not like it, persuaded the union that they wanted industrial action and took a ballot for a protected dispute, they would be fully entitled to do that. Nothing in the Bill would stop them doing it, and we would not seek to stop them doing it, apart from by persuasion. Fire-fighters are covered by Section 238A, whether it is relevant to this Bill or any other Bill or Act. They are covered

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following the rules set out for Section 238A to operate, so we do not need Amendment No. 40. It would be legislating for the same thing twice.

Lord Wedderburn of Charlton: The Minister has just made a proposition that was more relevant to the previous amendments than to this one. I wish to get clear what he said. I believe he said that if the union induced industrial action—of course, in contemplation or furtherance of a trade dispute—and there was a ballot, there would be complete protection. He is therefore saying that no unlawful means tort could possibly be committed. Is that the proposition? I wish to get it clear so that we can consider the position on Report.

Lord Rooker: I have already said this twice today in response to other amendments. I gave not an example but a point that spells it out in no uncertain terms: if the Secretary of State were to make an order under Clause 1(1)(a) and the union decided to ballot its members on whether to take industrial action in protest at the order, the resulting industrial action would constitute a trade dispute and therefore attract the protection available under the 1992 Act. It cannot be any clearer. They may not like what is in the order. If they want to take action against it, they are protected so long as they follow the rules. I cannot make it any clearer.

Lord Campbell of Alloway: Perhaps, briefly, I may say that I am not in favour of either side on this. I am against the Bill, as your Lordships know. But I understood the noble Lord, Lord Rooker, in the sense that he has described. I think that the noble Lord, Lord Wedderburn, must have misunderstood the true intention of what the noble Lord was saying.

Lord McCarthy: We are going back to an issue that we have been over and over. Perhaps it would help if we took that into account on Report. The fact is that the Minister has quite forcefully said, over and over again—I shall have to go through Hansard to see how many times—what the Government intend. We are not disputing what the Government intend over and over again. We are saying that, unfortunately, there are the courts. The courts might have a case where it was argued before them that the things that have happened were not covered by Section 238A. Because we do not know the circumstances, we do not know precisely what might be said. In this case, as we say in many other cases, for the avoidance of doubt it would be better if it were specifically stated on the face of the Act something that embodies what the Government intend but that does not necessarily always result in what the Government intend coming about in the courts.

Baroness Turner of Camden: I am obliged to the Minister for restating categorically the Government's position on the issues that we have raised today, particularly Amendment No. 40. However, I still have some concerns. I am worried about the overriding authority and the powers that accrue to the Secretary of State in the Bill. On account of that, I was anxious

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to have it spelt out in the Bill that protections for fire brigade members still exist—even though the Minister says that they are there anyway under existing legislation. We may return to something else, perhaps differently worded, on Report. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 41 not moved.]

Lord Wedderburn of Charlton moved Amendment No. 42:

    Page 3, line 27, at end insert—

"(5A) After section 244(2) of the Trade Union and Labour Relations (Consolidation) Act 1992 (c. 52) there shall be inserted—
"(2A) For the avoidance of doubt, subsection (2) applies to any case in which the dispute relates to matters which are the subject of an order made by the Secretary of State under the Fire Services Act 2003 affecting the working conditions of members of a fire brigade.""

The noble Lord said: In our submission, there is a misunderstanding of the law as it stands. When he was talking on the previous amendment, the Minister posited a case, which we all hope does not happen, where there is an order that the fire-fighters and the union do not like, a strike is induced, there is a proper ballot and all the other proper procedures are followed; for example, the right notice is given and all the right things are referred to in the notices. The Minister said that, obviously, that would be a trade dispute. I would have thought so. However, I am afraid that in dozens of court actions, including the dock strike case and all sorts of others, it is argued that, in parallel situations, precisely where a Minister has exercised his functions—quite properly—under his statutory powers to deal with matters that are in dispute, the dispute is not between employers and workers but between the union and the Minister. That is such a common pleading that anyone who has ever seen anything of a parallel situation will know that it is very often one of the first things to which plaintiffs, solicitors and counsel turn.

The definition of a trade dispute in Section 244 of the 1992 Act begins with very important words:

    "a 'trade dispute' means a dispute between workers and their employer which relates wholly or mainly to one or more of the following".

What follows is not relevant, as it is about matters on which common ground would be involved. The definition refers to a dispute between workers and their employer. The allegation is often made in such cases that, in striking against the terms of an order, no matter which of the legal results an order would make—whether it impacts directly and immediately on conditions of service or whether it is a statutory obligation that does not enter the conditions of service—the argument does not go to content; it goes to parties. Unless you have the right parties—I have lost cases on this point—you do not establish your trade dispute and you are out, ballot or no ballot, notice or no notice, quite rightly, as that is what the statute says.

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Parliament knew that this was a problem. The Labour government passed a section that survived the destruction of so much in the 1980s. It is now the section to which the amendment refers. Since the section has not been explained, I think I should read it. Section 244(2) of the 1992 Act states:

"A dispute between a Minister of the Crown and any workers shall, notwithstanding that he is not the employer of those workers, be treated as a dispute between those workers and their employer if the dispute relates to matters which—
(a) have been referred for consideration by a joint body on which, by virtue of provision made by or under any enactment, he is represented, or
(b) cannot be settled without him exercising a power conferred on him by or under an enactment".

I have discussed that section with a number of colleagues. It was generally agreed that it is not wholly clear that a dispute of the kind that the Minister and I are talking about—where the union sees the order, does not like it and supports a strike—would fall within Section 244(2). That is the reason that we have moved the amendment. I do not know whether the provision should have begun with the words,

    "for the avoidance of doubt",

but it does. I do not like that phrase. It states that, for the avoidance of doubt, subsection (2) applies in any case in which a dispute relates to matters which are the subject of an order made by the Secretary of State affecting the working conditions of members of the fire brigade.

The reason for the doubt is whether such a dispute would fall within paragraph (a) or (b) of Section 244(2). At the very minimum, there is very serious doubt at the moment as to whether a court would hold that it did. I join with the Minister in saying that such circumstances should be regarded as giving rise to a trade dispute. The reason for the amendment is to make that absolutely clear. I beg to move.

5.45 p.m.

Lord Campbell of Alloway: Very briefly, it does not seem to me that it is really applicable or apposite to use this short Bill, which has a single purpose and is for a short duration, and is applicable in a state of terrorist attack, other emergency or generally and then to say that in the context of the application of this Bill, which is a very unusual type of Bill, we should amend the Trade Union and Labour Relations (Consolidation) Act 1992, which is of general application, quite outside the concepts of a specific single-purpose Bill.

I listened as best I could to the reasons given for the amendment but I am unable to understand them. That may be my fault, but even if I could understand them, it does not seem to me to be appropriate.

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