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Baroness Turner of Camden moved Amendment No. 28:

The noble Baroness said: My Lords, in Grand Committee, the Government accepted an amendment moved by my noble friend Lord Lea to the effect that nothing in the Bill affects the possibility of the parties agreeing on a reference to mediation, conciliation or

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arbitration on the interpretation of the June 2003 agreement between the FBU and the local authority fire service employers. My noble friends and I were grateful to the Government for accepting the amendment, which envisaged the possibility of the resolution of any difficulties through third party intervention—that is, by means of mediation, conciliation or arbitration. That is the way in which union officials, of which I was once one myself, normally expect to deal with differences.

We believe that the inclusion of the clause goes some way to making the Bill slightly more acceptable. However, the overriding powers in the Bill still exist and have not been modified by the inclusion of the wording. There is very little point in having the right to go to arbitration, for example, underlined by including it in the Bill, if the powers that exist in the Bill can override whatever decision results from the arbitration. Unless the decision reached in arbitration is respected, it is simply a waste of everyone's time.

I am not sure that it is the Government's intention to ignore the result of arbitration, conciliation or mediation, but I am concerned with the wording of the Bill. As it stands, irrespective of what may be said on behalf of the Government today, it would be open to a Secretary of State simply to use the powers of the Bill without regard to any decision reached by external arbitration. The powers in the Act will be absolutely overriding.

That is unsatisfactory, so I hope that the Minister accepts that the arguments have some force. Even if the wording of our amendment is unacceptable, perhaps he could come up with something that meets our concerns before the Bill finally leaves the House. I beg to move.

Lord Evans of Temple Guiting: My Lords, Amendment No. 28 prohibits the Secretary of State from making orders that would alter any agreement reached by the parties through arbitration on the interpretation of the agreement signed on 13th June 2003. If the two sides in the NJC felt that they were getting into difficulty and sought mediation, conciliation or arbitration, we would encourage that. There are many areas where I am confident that if the two sides can come to an agreement, so there is no dispute between them, we would not want to intervene. However, it is a big step from that to say that, whatever the outcome, we may not intervene.

It would not be acceptable if agreements reached now flew in the face of what we are saying in the White Paper. It is not unreasonable that, if the arbitrator comes up with something quite different from published government policy, the Secretary of State should be able to intervene and stop things going off in the wrong direction. The Bill, of course, requires the Secretary of State to consult the negotiating body before he makes an order fixing or modifying conditions of service. The Secretary of State would doubtless take the views of the body into account before finalising his proposals. That would include any decisions made under arbitration. With that in mind, I ask the noble Baroness to withdraw her amendment.

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10.45 p.m.

Baroness Turner of Camden: My Lords, we have been told this evening that the White Paper is relevant, but earlier we were advised that it was not relevant to the Bill. I have worked on the basis that we were not discussing the White Paper this evening.

Frankly, it is rather disappointing that the Minister was unable to accept what we are proposing. It is proposed because we are seeking to be helpful and to spell out in the Bill that it is worth going to arbitration as arbitration will actually mean something. What bothers us—and has bothered us throughout the discussion on the Bill—is the overriding nature of the powers in the Bill and the fact that it gives the impression that no matter what people want to do, finally the Secretary of State will have his say and that is it and there is no point in attempting to do anything at all about it. That is unacceptable except in an emergency. The Government have not been prepared to accept the amendments that we tabled to make it clear that the Bill had application only in emergency situations.

As the Bill now stands, if it leaves the House unamended, it will say to everyone, "Look, the Secretary of State can do what he wishes to do irrespective of whether there is an emergency or not. That is the overriding situation and that is it, finished". That is not at all acceptable. However, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 3 [Supplemental provisions]:

Lord Wedderburn of Charlton moved Amendment No. 29:

    Page 2, line 38, after first "service"" insert "means terms and conditions of employment and"

The noble Lord said: My Lords, the object of this amendment is to define what is meant by "conditions of service" in the Bill. At the moment there is no definition of "conditions of service", merely an indication that they can include pay and hours.

Like all our amendments, this is an amendment which would be helpful to the Government, although their difficulty in appreciating the help that is offered them has already been made apparent this evening. The reason it is important that the Bill should define "conditions of service" as meaning terms and conditions of employment is that that would go a large way to making clear what is at the moment ambiguous; namely, that an order under Clause 1(1)(a) would operate so as to effect terms and conditions of employment in a contractual sense. Therefore, if there were any threat ever—I do not appreciate that there may be—to take action on the part of the workers concerned in opposition to such an order fixing conditions of service, it would at least be arguable that this was an inducement to break conditions of service, which meant terms and conditions under their contracts of employment.

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The amendment would make it quite clear that at least the orders under Clause 1(1)(a) impose contractual conditions and not free-standing statutory duties. It would not do much for Clause 1(1)(b) orders but we have already seen that the Government do not seem to care about inducing a breach of those.

The right to strike would therefore pro tanto be protected in respect of the sort of dispute that the Government have usually described; namely, some dispute relating to an order fixing or modifying new conditions of service, and the Government would be free from the charge that they chose not to clarify the position and deliberately left the possibility that the effect of orders under Clause 1(1)(a)—as government spokesmen this evening appear always to accept—would operate as imposition directly of statutory duties. At least they would be rescued from that thicket by this amendment. I beg to move.

Lord Evans of Temple Guiting: My Lords, Amendment No. 29 inserts some additional words into the definition of "conditions of service". My noble friend moved a similar amendment in Grand Committee where he explained that the purpose of the amendment was to ensure that the duty of complying with an order about terms and conditions of service applied throughout the contract of employment.

The advantage he saw in this, as opposed to a statutory duty to comply, was that it would be quite clear for the purpose of the Trade Union and Labour Relations (Consolidation) Act 1992 that any breach of what the order required would be a breach of contract and not a breach of statute.

The Government's view is that fire brigade members will anyway be under a contractual duty to observe the conditions of service imposed by any order under Clause 1(1)(a). As my noble friend Lord Rooker explained earlier, in discussing Amendment No. 11, any changes to terms and conditions of service introduced by such an order will become terms of the relevant contracts of employment. Failure to comply with them would be a breach of contract.

As I also said earlier, I do not favour making "just in case" amendments, which in our view this would be. However, I hope that with the assurance I have given about the way in which this would work, the noble Lord will feel able to withdraw the amendment.

Lord Wedderburn of Charlton: My Lords, we have it again. First, my noble friend from the Dispatch Box misstates what is in the Bill. The Bill does not have a definition of conditions of service. Clause 3(2) states:

    "'conditions of service' includes . . . pay and allowances, hours of duty or leave".

That is not a definition; that is a statement of inclusion. There is a rather simple difference between that and an exclusive definition. The amendment offers the Government a definition to say what my noble friend has just said—to state the Government's intention in the Bill.

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The Government seem to think that they make law by standing at the Dispatch Box. That is neither a democratic nor a justifiable view. Their intentions are not law. Their interpretations are not law. It is what is in the Bill and what goes on the statute book that is law. Unless they define conditions of service in the way that the amendment suggests, they cannot do other than leave ambiguous, at the very least, whether a court would hold that they are direct statutory obligations. We have explained this again and again, but all the Government do is say, "Well, that is not our intention". If it is not their intention, why do they not put it in the Bill? They do not put it in the Bill because they do not want to. That is why some of my more suspicious friends say, "If they do not want to, what are they up to?" What is the worth of these statements of intention if they will not shroud them with the majesty of law?

This will come up again on Third Reading, whether in this guise or another. That causes great merriment on the Government Front Bench. The Government have more merriment about their refusal to understand in this Bill than in any other legislation—even in the dread years of the 1980s—that I have experienced in this Chamber. Of course they are mainly newcomers to this Chamber, as was proved in Grand Committee. However, they are not newcomers to the law and to industrial relations, because they are legislating on it. Let them go away and think again. This is the nub of a major question about statutory duty and breach of contract. For the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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