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Lord Evans of Temple Guiting: My Lords, in his first intervention, the noble Lord, Lord Campbell of Alloway, was absolutely correct. The proposals in the White Paper about reform of the NJC are not a matter for the Bill that we are discussing this evening. The White Paper and not the Bill proposes that we should take power to determine the number, composition and chairing of the negotiating body or bodies for England. However, we acknowledge that the agreement signed in June between the FBU and the employers recognises that the constitution of the NJC needs revision. The parties have agreed to consider that and are doing so at this moment. We welcome those developments and shall see what they produce before deciding whether to intervene.

The noble Lord, Lord McCarthy, must see that the Bill does not allow the Secretary of State to determine the number, composition and procedures of the current National Joint Council. It does, however, define "negotiating body", and one part of the definition indicates that the body must be constituted in accordance with what appear to the Secretary of State to be appropriate arrangements for the negotiation of conditions of service of fire brigade members.

The purpose of that part of the definition is so that the Secretary of State can be sure that the body is properly constituted and thus properly representative of both sides, with agreed procedures in place. The government view is that, while we have made clear in the White Paper that we believe that the NJC needs to be reformed, the current NJC meets the definition in the Bill and therefore that is the body that would fall to be consulted by the Secretary of State.

The second part of Amendment No. 23 requires that, in making an order, the Secretary of State shall have regard to relevant ILO conventions, the European Social Charter and UN instruments binding on the UK. However, where such conventions or agreements are binding on the UK, it goes without saying that any Minister making an order under the Bill would have to have regard to them. I do not believe it is generally helpful to add such requirements to the face of legislation.

Under the third limb of Amendment No. 23, if a member of the negotiating body expressed reason to doubt that an order did in fact comply, the Secretary of State would have to make clear how his proposals did not conflict with those instruments. We would certainly not expect the orders to conflict with the instruments, but we could not stand by if there were further breakdowns that threatened to lead to a resumption of industrial action. In addition, once again, for the millionth time, I draw noble Lords' attention to the fact that the powers in the Bill are time-limited to two years, and therefore this issue will not be around for ever. Having given those assurances, I respectfully ask the noble Lord to withdraw his amendment.

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Lord McCarthy: My Lords, the Government are incapable of learning—totally incapable. At no time this evening, or in Committee, have the Government felt the need to answer issues raised in the White Paper or what the Government intend to do to the principle of mutuality. They have not said whether they are justified and, if they are justified, why they are justified. They have not said how they came to make those reactionary statements in the relatively unimportant White Paper. If they say things and cannot defend them, one wonders how far they want to go with this basic attack on the principles of collective bargaining.

The Government have nothing to say. They say, "It is not covered in this Bill" or "We cannot talk about it now". It has become a congenital disease. They cannot answer the question. Every time one asks what one believes is a very simple question that goes to the heart of what we are supposed to be about—for the millionth time, the Minister says—one does not receive an answer. It is dreadful; it is awful. It is killing this Government. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord McCarthy moved Amendment No. 24:

    Page 2, line 29, at end insert "and that duty shall be owed to and enforceable by the Secretary of State"

The noble Lord said: My Lords, Amendment No. 24 will probably suffer the same fate. It is an amendment that we introduced previously. In our way we are trying to limit the enforceability of the orders. We say in the amendment that that enforceability, that duty,

    "shall be owed to and enforceable by the Secretary of State",

and by no one else. We say that partly because we believe it is a reasonable limit, but also to achieve clarity. As we go on, the chances of achieving clarity are tending to disappear.

As the noble Lord, Lord Rooker, pointed out in Committee, Clause 1(9) states:

    "It shall be the duty of a fire authority to comply".

My noble friend Lord Wedderburn asked in Committee what happens if they do not comply; what happens if it is not their fault that they do not comply because they are prevented from complying and, in particular, they are prevented from complying by the actions of the union or the actions of the members of that union? As I said on the previous amendment, we have not had an answer to that question. Who can sue? Who can obtain enforcement? Is it to be the Secretary of State, as we suggest, and only the Secretary of State, or could an authority that felt that it was prevented by industrial action seek to enforce it; or could an injured third party take action? If action were taken, what action would be justified? Could an interim injunction be acquired, considering the easy way in which interim injunctions can now be granted?

That deals with the union and the organisation, but what about the workers? I have tried to make this point before. I have asked this question not a million times, but six or seven times. What is the position of the worker who is dismissed? He or she frustrates the order and as a result the employer sacks him or her. Is that

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a fair dismissal? Is there some other substantial reason. If the matter goes to a tribunal, if the union defends the person and says that after all it is all right because it is just a breach of contract, and if the employer says to his lawyer, "Oh, no, it is not just a breach of contract; he has frustrated a statutory order and that is not protected", how should the chairman of the tribunal advise the side members? Can the Government help? No. I cannot get a word out of the Government. I do not think they know. They have blundered into this thing.

When we asked for elaboration the Minister took the view that the only way the issue could be clear is if he did not elaborate. Ignorance was bliss. He said:

    "Clause 1(9) is one of the shortest subsections in the clause. The fewer the words, the less likely they are to be confusing. It is fairly clear that there is a duty on [an authority] to comply with a direction. The amendment would mean that only the Secretary of State could bring such an action".

That is right. That is what we want.

    "I say without qualification that the Secretary of State is very likely to have a big interest in enforcing such an order. It would be the Secretary of State who decided to use the power to determine the terms of the direction. If there is good reason to make the direction or order, there is a hell of a good reason to ensure that it is enforced. It goes without saying that the Secretary of State certainly would have that keen interest".

We thought at that point that the Minister was saying that it was primarily a job for the Secretary of State, and that if anyone wanted the order enforced and felt that he was being damaged by the frustration of the order, he could go to the Secretary of State and say, "take action". But, no, he went on:

    "On the other hand, if one takes not much of a leap of imagination, one would realise that others might"—

not will—

    "have an interest in enforcing such orders. The order could be, for example, that one fire authority is required to make facilities available to another fire authority. That other fire authority—the other body— might want to enforce that. It would be entirely up to it if that were the case".—[Official Report, 7/7/03; col. GC38–39]

The Minister does not mention at any point the union, or what would happen if the fire authority went against the union. It is all being done in terms of the employer.

It would be very odd, would it not, if the Government were intentionally legislating and enforcing the order entirely against employers, so that the worker would be free? Noble Lords in the Opposition—if they pay attention, thank you—would undoubtedly, as they did, say, "This is a daft Bill. It leans on the employer but the worker is scot-free. You pass this Bill and the worker can go on striking in exactly the same way. His right to strike is exactly what it was before". That is what the Opposition said in the other place.

The Government said, "Don't worry about that. We will tell about that in the White Paper". There is not a word about it in the White Paper. So I ask the Government today: are you really saying that this enforcement is entirely and absolutely on the employer? The trouble is that you do not say; but please do say if you do not agree with our amendment. If you think that someone other than the Secretary of

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State has power to enforce this order, say who they are; say how they will do it; say what the consequences will be; and say what the liabilities will be for the union and the union's members. I beg to move.

10 p.m.

Lord Wedderburn of Charlton: My Lords, as my noble friend Lord McCarthy has indicated, the amendment has more than a narrow procedural ambit. It goes to the root of how the Government see the statutory duties created by this Bill.

The fire authorities have told us one thing. Clause 1(9) states:

    "It shall be the duty of a fire authority to comply with a direction . . . in an order".

If one thinks about a fire authority subject to an order which it does not like, an order perhaps about closure of fire stations or the removal of important and essential equipment from one place to another—Shooters Hill and Greenwich are always taken because that was a prize case which involved this issue under previous legislation—the person who can persuade the fire authority and say, "Don't be silly; you must do what the order and directions say you must do", is of course the Secretary of State. He controls the purse strings and will try to control the effect of his order with its statutory duty. If an employing fire authority fails to observe his Clause 1(1)(b) directions to reallocate the engines or close the stations, surely the primary responsibility of enforcing them should fall to the Secretary of State.

Under the law, if it comes to the crunch, the way to enforce such a statutory duty, because the Bill does not state that there can be any action for damages is, as my noble friend said, by injunction—and, if necessary, by interim injunction, which can be imposed in the courts at very short notice. We are saying, "All right; if that is the structure that the Government want to create, say so in the Bill. Don't say, as the noble Lord, Lord Rooker, said in Grand Committee, that lots of other people may have the right to bring action for injunctions". Why give rise to a flood of litigation in the middle of a tense situation? We say that it should be the Secretary of State, not Uncle Tom Cobbleigh, Harrods or "Disgusted of Tunbridge Wells", who has the right to move the High Court for an injunction.

Rather than let loose that misdirected flood of litigation—which may happen—there should be the same position as in the leading case that dominates the problems of this part of the Bill. We cited that case in Grand Committee and have never received any kind of comment from the Government: Meade v. Haringey Council in 1979, in Industrial Cases Reports page 509. The union brought out some of the personnel—caretakers and others—in Haringey schools, which was said to be a breach on the part of the education authority of its duty to keep schools open, because they had to close them. Who brought the action for the injunction? With no disrespect to him, he was a "Disgusted of Tunbridge Wells" figure, Dr. Meade.

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The court said that Dr Meade:

    "claims to be entitled to bring these proceedings in his own right as a parent who has suffered damage by reason of the closure of the schools. He also claims the right to bring these proceedings on behalf of other members of a body of 1,000 people who have formed themselves into an association called Haringey Schools Trust as well as on behalf of all the other parents of children attending or due to attend the defendants' schools as well as on behalf of all the ratepayers of Haringey".

That is how you enforce a statutory duty if the Bill or Act does not make clear that the enforcement authority is more narrow.

In Grand Committee, it was suggested that it was an absurd new idea that an Act should confine the enforcement procedure to the Minister primarily responsible, having made the order. There is a clear set of precedents. One of them is legislation put on the statute book by the previous government in 1994 to restrict the right of prison officers to take industrial action. They had their right to take industrial action restricted by the Criminal Justice and Public Order Act 1994.

Section 127 of that Act states that if a person contravenes the section by inducing a prison officer to take action in contravention of his duty of service and obligations as a prison officer, that is a statutory tort—a breach of a statutory duty. But the section continues:

    "The obligation not to contravene subsection (1) above shall be a duty owed to the Secretary of State".

Subsection (3) makes clear that the duty is to be enforced by the Secretary of State.

I do not quote that section as a desirable precedent for restricting the rights of industrial action of prison officers, who are not exempted as a special group by the rights of association conventions of the ILO or any other international body. However, legislation which nobody objected to on any formal or substantial grounds, stating that only the Secretary of State could enforce the breach of a statutory duty, is on the statute book and can be found elsewhere. Why do the Government want to leave it obscure and indeed to imply that anyone who suffers damage by a breach of a statutory duty created by orders under the Bill can bring an action in the courts? What has brought about this sudden desire for a litigious creation in the Bill?

My noble friend has made the case clearly that it would be much better, as a matter of common sense—not of law, but of technique and common sense—to confine the right and power to enforce the statutory duties created by the Bill to the Secretary of State. That is all that the amendment seeks. I hope that the Government can begin to see some sense and to accept it.

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