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Lord McCarthy: My Lords, yes, but are we saying that they are in the same category as the Armed Forces and the police? If that is the case, then say tonight that you are putting them in the same group as the Armed Forces and the police, but do not dare to tell me that you have not abridged their right to strike. Of course you have.
One could go on finding things on which something should be said, and about which the Government ought to come clean. In particular, the Government should come clean about how the Bill seriously undermines workers' right to take industrial action. I do not think that they are prepared to say anything, or to put anything in the Bill, but surely they ought to say
Baroness Turner of Camden: My Lords, I support my noble friend's amendment. As I am sure the Minister is well aware, it is usual to have codes of practice issued in connection with legislation. That is all that the amendment proposes. As he is well aware, the legislation is not terribly popular. I have received letters from the FBU opposing it. If a code of practice is issued indicating how the Government see their powers under the Bill and how they intend to proceed, it might render the whole exercise slightly more acceptable, which needs to happen.
Lord Wedderburn of Charlton: My Lords, I support the amendment. However, the problem that my noble friend put involving industrial action will be very simply remedied, because the Government can easily accept Amendments Nos. 11 and 25I hope that the Minister willand put the matter right. It is a very simple point, but we shall come to it then.
The thread of merit goes further in view of what the Minister has said earlier about challenge in the courts. He said that Amendment No. 1 could be challenged in the courts. When I asked him how that could be done, he said that he did not know. This is a very important constitutional moment. If I were a critical chap, and if the Minister were paying attention to the point, I might say that when a Minister of the Crown tells the House that a form of words could be challenged in the courts and is then asked how that would be, to which he replies, "I do not know"of course I have sympathy with him as it was not in his briefthat would usually be the occasion for a Statement at a later stage.
The great merit of this amendment is that it cannot possibly meet that objection. It has been well recognised that such a code of guidance is not creating rights or duties, which means that it is not legally binding on the Minister, but that the courts may take judicial notice of it. Therefore, there is no question of a challenge in the courts for the code of guidance and it would, as has already been said by both my noble friends, also have the great merit of being able to resolve situations that might otherwise lead to a more provocative dispute.
I therefore hope that the Minister will take very seriously the idea that, once again, instead of merely telling us the Government's intentions, all of which we totally believe, they will put something about those intentions in the Bill. What the Government say is not law, but what the Bill or Act states is. We shall return to that in other amendments.
The Secretary of State is under a general duty to act reasonably and proportionately and the Secretary of State has made it clearas have we, on many occasionsthat the powers the Bill would confer are designed for a very specific set of circumstances. The Secretary of State is not going to decide suddenly to use the powers for an alternative purpose. Even if he did, the Bill places a duty on the Secretary of State to consult with either the negotiating body for orders under Clause 1(1)(a) or with persons affected by an order under Clause 1(1)(b) before using his powers. So the Secretary of State can respond to new, developing or unforeseen circumstances but no one can be taken entirely by surprise.
As the code of guidance suggested in Amendment No. 10 would create no legal right or duty, if the Secretary of State decided he did want to exercise his powers outside the code of guidance, he could simply amend the code. So the amendment would introduce a very blunt and ineffectual tool in curtailing the use of his powerswhich I assume is what is intendedcompared to the existing duty to consult.
The amendment states that the code could be taken into account by courts in relation to any order made by the Secretary of State, but as noble Lords know, any order made by the Secretary of State under this Bill would be open to judicial review anyway, whether a
Lord McCarthy: My Lords, that is not entirely a surprise, but it is remarkable. The Minister says that the amendment is unnecessary because the Secretary of State is a reasonable man. Are we not all reasonable men? However, he cannot tell us the criteria that he will use to apply his reasonability. He is just a reasonable man. If he were unreasonable, he could be taken to court. However, people want to know what is going to happen before it happens. They do not want suddenly to be told that this or that is happening.
The Minister says that people will not be taken by surprise entirely, and that they will have some idea, because the Bill has a specific purpose. We have often been told that in the course of this debate, but we are not told whether that specific purpose comes in when there is a strike, when there is no strike or when any of the many and variable situations that will take people entirely by surprise occur.
So I do not see how, when the Bill is an Act, the Government, whether or not they accept the amendment, will not have to produce something. Every Bill that I have ever got involved with has had something from some ministryit is usually highly glossy and expensivetelling us what the Bill will do and giving some guidance. This will be a uniqueand reasonable, of courseBill. Not only will there be no code of practice, for the first time; there will be nothing but silence, while we wait for the reaction of the reasonable man.
The Deputy Chairman of Committees (Lord Ampthill): With the agreement of the Committee, I do not propose to waste time reading out something which we have now heard eight times over; we may proceed straight away to Clause 163 and Amendment No. 245.
Clause 163 provides for the entry and search of premises after the person in question has been arrested. The clause lays out conditions for search and entry, the relevant offences that relate to the power to search and details of what may legitimately be seized during that search. Subsection (8) states:
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