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Baroness Turner of Camden: My Lords, I support the amendment moved by my noble friend. We are now at Third Reading; we have put down amendments at every stage of the Bill through the House. It is clear that we do not like the Bill, but we have always accepted that since it had been approved by the Commons, we should not attempt to wreck it, and we have not tried to do so. We have sought, by amendment, to improve it, and to protect the hard-won rights of the trade unionists to whom it applies. I say to my noble friend Lord Davies that that is what this amendment is all about.

We have accepted the statements made on behalf of the Government by my noble friends that the Bill is to be of short duration, that it is to be used in emergencies only and that there is no intention to interfere in any way with the trade union rights currently enjoyed under existing legislation and provided for in ILO conventions. Our problem throughout our discussions has been that the good intentions are not contained in the Bill itself. It gives the Secretary of State absolutely overriding powers to do virtually what he likes so far as terms and conditions of fire service employees are concerned. The key clause is Clause 1, under which the Secretary of State may, by order—may, by statutory instrument—fix or modify the conditions of service of fire brigade members.

As has repeatedly been said by my noble friend Lord Wedderburn, the point about an order made by statutory instrument is important. We did not support the amendment in the name of the noble Lord, Lord Campbell of Alloway, since it involved leaving out Clause 1, which is the key clause. However, despite the Government's repeated assurance that the powers are required only for use in an emergency, this is not stated in the Bill and, as it stands, it is open to the Secretary of State to use the powers as he thinks fit.

Our attempts to define circumstances in which the powers could be used have been rejected by the Government. However, we have repeatedly been told

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by my noble friends on the Front Bench that it is absolutely not the intention to use the powers to interfere with the right, already contained in existing legislation, collectively to withdraw labour. The right to strike, we have been told, is not at risk in the Bill. Under the 1992 Act, a trade union following the provisions set out regarding balloting of members, and so on, secures immunity from legal action if it calls an industrial dispute involving the withdrawal of labour if it follows correctly all the procedures set out in the legislation. However, as we have repeatedly pointed out at various stages in the Bill's proceedings, the Secretary of State may make an order, if this Bill becomes law, and he does so by means of a statutory instrument. In other words, a statutory duty is then imposed on fire service employees.

We have consistently explained that industrial action in breach of a statutory requirement does not have protection. It thus seems to us that despite the Government's good intention, the right to withdraw labour is, in fact, under threat.

At various stages in the Bill's proceedings, and again this evening, my noble friend Lord Wedderburn has drawn attention to a number of cases in which it has been held that the breach of a statutory duty is quite different from a breach of contract of employment. In the latter case there is protection; in the former there is not. This is an important issue, not only for the Fire Brigades Union, with whom we have been in contact, but with other unions generally. I understand that the TUC has recently expressed concern about it and believes that the Bill should be amended to make sure that the Government's intentions are clearer in the Bill. That is what our amendment seeks to do. It does so with great clarity and, in view of the Government's previous assurances, we have set out in the amendment the declaration that it is for the avoidance of doubt—that is very important.

As my noble friend Lord Wedderburn has said, we understand that legal advice has been given to the Government. My noble friend has produced a very comprehensive document, which I have in my hand. It attempts to deal with the legal advice under which I believe the Government maintain that they have guaranteed the right to strike. We do not believe that they have effectively done that.

My noble friend Lord Bassam, dealing with this issue on Report, claimed at col. 123 on 6th October that the amendment we were seeking to make on that occasion would have caused confusion. I think the opposite is the case. If the Bill remains unamended but trade unionists take heart from the Government's repeated assurance that it is not their intention to offer less protection than the law currently provides, situations may arise in which, even after following the procedures specified in existing legislation, trade unions and their members will find themselves without the protection they thought they had. Surely that is a recipe for confusion.

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As my noble friend Lord McCarthy pointed out on Report, it would mean that workers could be dismissed, and the dismissals would be regarded as fair because there had been a breach of statutory duty rather than of contract of employment.

This is a final attempt to put right what we believe has not been properly understood by my noble friends on the Front Bench. We believe that the amendment is necessary for the avoidance of doubt, and we commend it to your Lordships.

11 p.m.

Lord McCarthy: My Lords, I shall try to do four things. First, I want to explain to those who have come to the debate without being concerned with previous debates how we have got where we are. Secondly, I want to focus on what Ministers have said so far, and quote from what they have said, because that is critical to the debate. Thirdly, I want to refer, as my noble friend Lord Wedderburn has, to what the legal advisers have said. We have got that advice only at the last minute, which is a great pity. Let us not criticise them, however, because in my view what the legal advisers are saying is not what the Ministers are saying. If anything, the legal advisers are on our side.

Finally, I want to try to make the House cringe a bit, and particularly to make the Government cringe a bit, in considering what would happen if the Secretary of State was ever foolish enough to use the provisions of the Bill. He tells us that he does not want to—and he is right not to want to.

How have we got here? The noble Lord, Lord Wedderburn, said at some stage that someone—I believe that he was talking about the Government—should ask themselves in "the bowels of Christ" whether they might conceivably be wrong. I believe that the reference is to Cromwell. That reference applies to us as well.

I was responsible for suggesting that we should leave the legislation for six months, which is in a way why we are here. One might say that we went over the top—and I am sure that the Government believed that we went over the top—when we said that we needed to take six months off to see whether we could improve the Bill. The main reason why I wanted to do that was because the Government were pretending that arbitration would come in, in an independent way, and decide the dispute in the Fire Service. That is nonsense. They pretended it was arbitration, although they knew that it was not arbitration. They were going to impose their own will by law, and I believed that that was wrong, unless they allowed independent assessment before they proposed what they wanted to impose on the Fire Service. That is how I got involved, and that is how we came up with the six-month proposal. It seemed to me that, without six months, the Government could not sort out the mess that they had created by rushing into that unthought-out position.

Maybe we were wrong, because from that point on the Government stopped listening. They believed that what we were suggesting was radical and ridiculous—nobody ever stops Bills for six months. Of course, if we

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had had six months, there would not have been any disputes and, by now, we would have had a much better Bill. Never mind—maybe we should not have gone in in that frontal way. But that is why we are here and, if we went over the top, I apologise. I always apologise if I believe that it will help.

So we come to what the Ministers said. We debated the Bill in Committee and on Report, and here we are again—we have debated it for days and days. What the Ministers said was really very simple. They kept on saying that there was not a problem; they were so sure that there was not a problem. In Grand Committee, with total certainty, the noble Lord, Lord Rooker, said:

    "they are seeking to provide for something that already exists".—[Official Report, 14/7/03; col. 178.]

Later, he said:

    "We have said repeatedly"—

that is to say in the Commons as well as in the Lords—

    "I have not brought chapter and verse with me"—

which is a bit of a pity, but never mind—

    "that the Bill does not touch on the ability of firefighters to take . . . action".—[Official Report, 14/7/03; col. 180.]

There was total certainty, no equivocation. The Bill does not touch or brush on the ability of firefighters to take action. Later, in case your Lordships might not have got it, he said:

    "If people do not like what the Secretary of State does and have a ballot . . . there is no problem".—[Official Report, 14/7/03; col. 181.]

So the Minister told us three times that there was not a possible doubt. In case you think that that was only the Minister, the noble Lord, Lord Bassam, confirmed it. He said:

    "if a dispute arises about something dealt with in an order made under this Bill, the ordinary operation of the trades union law will offer . . . protection".—[Official Report, 6/10/03; col. 131.]

So what the Minister said was very clear, very precise and very complete.

I am sure that noble Lords will accept that that was rare. After all, it is rare in politics—though not in trade union law—for people to be that certain about the state of the law. My noble friend Lord Wedderburn always threatens the House, "If you question me, I will give you the cases". I will not do that. However, in 1871, 1875, 1906, 1965 and 1974—five times—similar assurances were made by similar governments about how things could not conceivably, possibly happen, but by God almighty they did. That is what it is like in trade union law.

Ministers, if I may put it like this, are gondoliers. They are friends of the gondoliers. The House will remember that Don Alhambra, the Duke and Duchess and Casilda said:

    "Search in and out and round about

And you'll discover never A tale so free from every doubt— All probable, possible shadow of doubt— All possible doubt whatever!" That is what they are; they come from Gilbert and Sullivan.

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So in that context I turn to what their legal advisers said. It is quite remarkable that we got their legal advice. We got it by accident. We got it because the Minister, Mr Raynsford, said he would like to see us. We did not ask to see him. We went to see him and we talked to him and put our case. He had his legal adviser with him. His legal adviser said certain things and we said, "Is that so?", and he promised to write to us. Subsequently he wrote to us. The remarkable thing is that I do not think that he agreed with the Minister. I shall just give a few quotes at the end. If anyone challenges me I will give some more.

Our assertion was that if the order were frustrated by action on the part of the worker, for example, it would be outside the protection of the Trade Union and Labour Relations Act. The Minister's adviser said that it was "highly unlikely"—not impossible, but he could not conceive it. We said that our fear was that the breach of a statutory order was not the same thing as a breach of contract and would create additional liability. You might have expected him to say, "Nonsense". That was what the noble Lord, Lord Rooker, said. Reviewing the cases, he said that our position was "difficult to see". That was hardly decisive. I could go on and on. We said that the possibility of action under Clause 1(1)(a) was quite strong and that we thought that it would succeed. He said that in his view it would not succeed. He said that action under Clause 1(1)(b) was more likely to succeed, if only because it would be difficult, although not impossible, to prove.

I know that lawyers have to be careful and that they cannot be as dogmatic as politicians, but I put it to the House that these are not the certainties of Prescott, Raynsford, Rooker and Bassam. The only disagreement we have with the advisers is over likelihood and odds. Sometimes we say that it is odds on, but they tend to say that it is odds off. With the exception of the Ministers on the Front Bench, who are talking to each other and not listening to me, no one has a closed mind. Only those Ministers have closed minds. Everyone else has an open mind.

All we have to prove to satisfy the House and my noble friend Lord Davies of Coity is that there is a doubt. I suggest that the Minister's advisers think that there is a doubt. I suggest that any sensible man who is not stuck with something he said before that he cannot get rid of would say that there was a doubt.

I pass to my final point. I hope that I have more of the attention of my noble friends on the Front Bench. What happens if the Secretary of State, who is a canny man, is daft enough to use this ludicrous Bill? If we think about it, it is very similar to the position that we almost had—thank God that we did not—in relation to the postal service. It is very likely that there will be doubts about whether the firemen and firewomen have completed what they need to do to get the second 3½ per cent. That is the way productivity arrangements work. It is very likely that some will get it and some will not. It is very likely that those who do not will be very cross.

Although I hope that it will not be the case—I am quite certain that the union will not support this—it is quite likely that there may be some industrial action or

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some non-co-operation. Some lads and lasses somewhere in the more militant parts of the United Kingdom will refuse to co-operate. They will say what they always say—"It is impossible. You are asking us to do things that cannot be done and because we cannot do these impossible things they will not give us the money". Some stupid employer somewhere will sack someone, because they always do, or they will threaten to sack someone. Just as occurred in the postal service, a lot of people will come out on strike because they have been threatened. They will go to a tribunal.

I asked my friends in the tribunal service about this matter. If I am wrong, I should like to be corrected. I said, "Surely when this is over, the Government will write to the employment tribunals and tell them not to take any notice of anyone who tells them that the measure is illegal". However, my friends told me that that would not happen and that the matter would be left to tribunal chairmen. We know what will happen. Some tribunal chairmen will say that the measure is illegal. They may even say that Wedderburn and McCarthy are right and that the measure is illegal. However, others will quote the Minister saying that the measure is legal. Some tribunals will say one thing and some will say another. It will not matter to the boys and girls because they will have had the sack. That is why they are appearing before the tribunal. Even if they were told that they had not got the sack, the employers would appeal and say something different. Eventually some employer or some third party will bring an action and it will be all the Government's fault.

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