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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.
Lord McCarthy: My Lords, the Government are incapable of learningtotally 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 aboutfor the millionth time, the Minister saysone does not receive an answer. It is dreadful; it is awful. It is killing this Government. I beg leave to withdraw the amendment.
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,
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
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 Oppositionif they pay attention, thank youwould 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
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.
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 injunctionand, 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 litigationwhich may happenthere 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 personnelcaretakers and othersin 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.
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 torta breach of a statutory duty. But the section continues:
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 sensenot of law, but of technique and common senseto 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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