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Lord McCarthy: We have been asked repeatedly, since I have been a Member of this House, in the course of passing a particular Bill to amend another Bill. I shall not say that it always happens, but if the Bill is of any substance it does happen. It is just not an argument to come along and say that one Bill is amending another Bill. It happens all the time and this
is the simplest way in which to do this. This is very mild, and I would suppose that the Government would say—I certainly hope they will—that once again they intend that this shall be the case, and because they intend it to be the case, it will be the case.Therefore, this is another example of something we shall have to think about carefully when we come back on Report as to how we can somehow merge the Government's intentions into actualities. My noble friend says that he does not like,
- "For the avoidance of doubt".
Lord Campbell of Alloway: I am grateful to the noble Lord. This is a debate. I wonder what the noble Lord would say. This is not on this occasion a question of the intention of Government on an assurance given by the noble Lord, Lord Rooker. It is a matter of plain construction of the terms of the Bill. As a matter of construction generally, subsection (1)(a) and (1)(b) apply to all the situations to which I referred: a terrorist attack, other emergency and generally. One of the reasons that I oppose it is because it applies to all three. But it is a matter of construction. It is not a question of the intention of the noble Lord, Lord Rooker.
Lord McCarthy: If it is not a matter of intention of the noble Lord, Lord Rooker, I do not know what his defence is. I do not see what it has to do with terrorism and the way in which it is applied. We are saying—I think we are right; we shall see when I sit down—that this is what the Government want to happen, so let us ensure that it does.
Lord Rooker: I suppose that the nub of this, in a way, is the question of whether an argument between the Minister and employees is a trade dispute. That is the nub of the argument. First, I shall show that it is, and secondly, for my clincher, I will even quote a case. But, this is a fair point to raise in the circumstances.
Trade dispute, as defined by Section 244 of the Trade Union and Labour Relations (Consolidation) Act, is a dispute between workers and employers as to terms and conditions. Obviously, in this case the Secretary of State is not the employer of the fire-fighters. That is generally held to be the case. Section 244(2)(b) provides that the term includes a dispute with a Minister of the Crown notwithstanding that the workers are not employed by him where the dispute cannot be settled without him exercising a power under an enactment, because obviously in that case he must become a party to the dispute.
In this case, if the Secretary of State has set a certain level of pay under an order under this Bill, which is then the subject of a dispute, it is arguable that only he can settle the dispute by revoking or changing the order. The employers could reach an alternative pay agreement. Do not forget that they failed to do that.
Everyone ignores that. The mere fact of an order under the Bill means that the employers and the unions have failed, otherwise we would not be operating the Bill in the first place. To get to this stage, they have completely failed and mucked it up. So, in that case, arbitration is available to them in those circumstances. It is only when all that has failed and we have a dispute that this Bill comes into force. That is why we do not want it as a backstop, as I have said repeatedly.In this case, you could argue that because only he, the Secretary of State, can settle the dispute by revoking or changing the order, if the employers tried to do it, of course in those circumstances they would be going against the order. So, in our view any dispute regarding the terms and conditions imposed by the order under this Bill clearly would be a trade dispute and would fall within the provisions of the 1992 legislation; that is, a dispute between the workers and employees and the Secretary of State, because only he can be involved in changing the order again.
Furthermore, the section would be likely to be given a positive interpretation by the courts. There is certainly one case, The London Borough of Wandsworth v National Association of Schoolmasters [1993] IRLR 344 CA, in which a dispute by workers as to the alleged excessive workloads brought about by orders made under the Education Reform Act 1988, which provided for the national curriculum, was held to be a trade dispute protected by the 1992 Act. So there is a parallel, if you like. Teachers are not employed by the Secretary of State for a start; they are employed by local education authorities, or in most cases, technically, by school governing bodies. But quite clearly the Secretary of State was involved in that and it was held to be a trade dispute. In similar circumstances our view is based on what we understand to be the law plus at least one case. It would be held to be a trade dispute and therefore it is not necessary to accept the amendment.
If we did accept the amendment, it would, frankly, frustrate the purpose of the orders under the Bill. We are not in business to have the Bill frustrated.
Lord McCarthy: Before the noble Lord sits down, I am trying to be clear about what he said. I shall read it in Hansard tomorrow. I thought he said that the order under the Bill would be invoked only if the parties disagreed. It therefore follows that once the parties agree—I thought I had an amendment down on this and the Government would not accept it, but never mind—the Secretary of State says, "I shall not use my powers. As long as they have agreed, that is all right". That seemed to me to be what the Minister was saying. Did I get it right?
Lord Rooker: I am not going back to read the Hansard of two or three Sittings ago. But at our first Sitting in Grand Committee and, indeed, at Second Reading, we made it abundantly clear that the Bill is a backstop. It is time limited for two years. We do not want to use it. All the relevant arrangements are available in the existing agreement between the Fire Brigades Union and the employers. If there is any
dispute in the intervening period, they can use their existing arrangements which include third party arbitration. I remember saying when responding to an amendment that if there was an agreement, generally speaking the Secretary of State would be reluctant to intervene.The point I am making is that the Bill would be activated only if a disaster arose of another dispute occurring with no sign of being settled in which case the Secretary of State—he has made this absolutely clear and we make no apology for it so there is no surprise in that regard—would impose a settlement as a way of drawing a line under the dispute. He would do so simply because we have learnt lessons from the events of the past 12 months. As I say, the Bill is time limited and will not extend beyond two years. Hopefully, we shall not have to use the legislation but if we did do so, it would be activated only because the existing system had failed.
Lord Campbell of Alloway: With respect, I hope that I may ask the noble Lord a question. He said the Bill would be used only if the parties disagreed. That is not quite what he means. He said it but I do not think that he meant it. What he meant was, if the parties agree with what we want them to do, we shall not use the Bill. But if they do not—
Lord Campbell of Alloway: But if the parties do not agree with what we want them to do, we shall impose the Bill.
Lord Rooker: That is entirely the case. The noble Lord expressed the matter perfectly. The two parties could have a sweetheart arrangement—it is not unknown between employers and trade unions to have a sweetheart arrangement—and say to the Secretary of State, "By the way, we have agreed; here is the bill". We would say, "Sorry, we are not paying the bill". We do not have a blank cheque.
Lord Wedderburn of Charlton: Ah!
Lord Rooker: My noble friend says "Ah"! There is nothing new in what I am saying. We have discussed the matter before. The parties can reach an agreement. But, as I say, that could be a sweetheart agreement with a bigger bill than we are prepared to pay for. We would not operate the Bill just because they reached an agreement in that sense. That is not what I meant. It is what I said but not what I meant, as the noble Lord, Lord Campbell of Alloway, said. I am not changing the words. But by and large if the parties have an agreement, we would not intervene. However, if they reached an agreement which was absolutely contrary to the financial settlement for the department and went against what had been agreed previously, we would say, "Hang on a minute". As I say, the Bill is intended for use in an emergency situation. I can honestly say that we do not want to operate the Bill. That would mean the present system had failed to settle any disputes or arrangements or the processing of the current agreement.
As I have already said, it would take several months to process the current agreement so that it becomes fully operable. Therefore, we need this as a backstop. I am not saying that there are any blank cheques here. It is not an agreement just because two parties agree that we pay the bill; that is a conspiracy against the public. To that extent, we would not actually foot the bill.
6 p.m.
Lord Wedderburn of Charlton: I am grateful to my noble friend for speaking on the amendment and to the Minister. The amendment has raised all kinds of issues that I had not expected.
The noble Lord, Lord Campbell, says he cannot understand the amendment but that even if he could he would be against it. There are precedents for that in our relationship. He has often said that he could not understand me but that he would be against me even if he could.
I take my stand on Section 244(2) of the Trade Union and Labour Relations (Consolidation) Act and the problem it poses in deciding whether or not this is a trade dispute. On the facts we have posited, which seem to be common ground, the Minister says it would clearly be a trade dispute. I say it would not clearly be a trade dispute. I have not yet talked to a lawyer who knows Section 244(2) who says that it would be clear that it was. I have talked to those who think it may be more likely than I think. The reason they do not think it is clear is that that section of the 1992 Act applies where the Minister is not the employer, but is using a statutory power in an order which the workers and their union do not like, on matters which,
- "have been referred for consideration by a joint body",
- "cannot be settled without him exercising a power conferred on him by or under an enactment".
Obviously, the dispute could be settled. Indeed, on the hypothesis discussed in the past few minutes, it is settled by the parties, but the Government do not like it. Normally, they would hope not to make an order where there has been a settlement, but for reasons I and my noble friend Lord McCarthy could not really understand at the time, they would not accept Amendment No. 9A. I, too, have not read Hansard, but I remember it so clearly because I was astonished by their total rejection of Amendment No. 9A. It said that where there was no dispute or disagreement between the members of the National Joint Council—that is the union and the employers—whether or not they agreed with the proposals of the Secretary of State
in his proposals for an order, the Secretary of State should withdraw his proposals and engage in new consultations.If the Minister says that the Bill applies only in such a crisis situation that there would not be time for new consultations, then we shall return on Report and table amendments that restrict the Bill to those conditions. There is plenty of discussion around at the moment. Why is it that in the Committee we have not heard a word about the draft Civil Contingencies Bill? It has two new definitions of emergencies. I believe that I am right in saying that the Minister was in the department that was primarily concerned with the matter. We have this Bill coming to us, which will scrap the old 1920 Emergency Powers Act, and which will re-legislate on civil defence on all the matters where emergencies are relevant.
The Minister is amused by my reference to the draft Civil Contingencies Bill. Noble Lords are being asked to consult on it before the end of September, while they are on holiday shooting grouse or whatever they do on holiday. After that, it will be put before them. I suspect that noble Lords have not heard of the draft Civil Contingencies Bill. If it is to apply only in emergencies, we shall draw on that debate on Report with gratitude to noble Lords and others who have taken part, and return with amendments to restrict the Bill to the circumstances in which the Minister has suggested it should only apply.
That is all relevant to this issue of trade dispute. It is not obvious within Section 244(2) that a dispute cannot be settled without the Minister exercising his powers. The Minister will want to impose what he wants to be done; that is the whole point of the powers. I am not objecting to that; I am saying that a court would not necessarily accept the argument that this was a dispute between employers and workers within the special meaning of Section 244(2). Until we hear some more pressing reason why that should obviously be so, we shall want to consider what has been said and return to the matter undoubtedly on Report.
I ask the Minister seriously to consider once again a matter which those who are competent to do so have been raising with trade union colleagues in regard to trade disputes on this matter. I ask him to look again very seriously at this aspect and the other aspects of what will remain lawful in trade disputes in common parlance. With that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
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