§ Moved, That the Bill be further considered on Report.—(Lord Rooker.)
§ On Question, Motion agreed to.
§ Clause 1 [Powers of the Secretary of State]:
§ Lord Wedderburn of Charlton
moved Amendment No. 11:Page 1, line 16, at end insert—(2A) The provisions of an order made under subsection (1)(a) shall have effect, notwithstanding any agreement to the contrary, as binding terms of the contracts of employment of fire brigade members to whom it applies, and not otherwise.The noble Lord said: My Lords, we are very glad to return to the Bill which, since the sunset clause was accepted in another place, has been rather doomed to be considered in the dim, evening hours of the sunset, but we are happy to have an opportunity to look at a Bill that raises such important questions.
The amendment concerns the orders that the Secretary of State can make under Clause 1(1)(a) and their legal effect. It eventually concerns the question of the right of firefighters and their union to take industrial action, a right that, time and again in Grand Committee, the Government have stated they do not intend to modify through the Bill.
Unhappily, in trade union law, Parliament has a long history of passing statutes which trade unions believe and are told, quite genuinely, release them from a series of illegalities, but decisions of courts later prove that they do not have that effect. In 1875, the new TUC parliamentary committee came close to winding itself up after receiving assurances of that kind. That belief was later rapidly reversed in the face of court decisions in the era of the Taff Vale case and the like.
There were similar occurrences in 1906 and in the 1960s and 1970s. Indeed, disaster would have ensued were it not for the famous amendment, which is relevant here, moved by Sir Charles Dilke at a late stage of the passage of the Trade Disputes Act 1906. I say with all humility that the amendment, as far as firefighters are concerned, is of parallel importance.
As constructed, the Bill threatens the right of the firefighters' union to take industrial action, albeit that we recognise that the Government say, as other governments have said for more than a century, that that is not their intention. That is why we are here tonight. The issue was not discussed in the House of Commons and it was not properly considered in 1141 Grand Committee. It is therefore a very serious matter for your Lordships to consider before the Bill goes through this House. Let me explain.
There are two ways in which a provision in or under a statute, such as an order made by a Minister in this case, can affect conditions of employment or other rights and duties. The amendment would cure the ambiguity in the Bill concerning the legal nature of duties imposed by an order under Clause 1(1)(a) on conditions of service. The first way in which a statute or order may do so is by imposing a statutory duty. An example would be a regulation under statutory powers relating to health and safety at work. Those duties are enforceable against the employer, for example, by persons whose interests are involved—very often, the worker concerned.
The Bill contains an example in subsection (9), which states:It shall be the duty of a fire authority to comply with a direction contained in an order under this section".The other way in which a statute or order can affect conditions of service is by imposing compulsory terms on the contract of employment. The legal force then operates not as a direct statutory duty, but through the medium of the contract of employment. That meaning is traditionally always made clear in the statute that wishes to adopt it. The primary example, which will be known to many of your Lordships, is the famous equality clause that was imposed to ensure equal pay between men and women in Barbara Castle's great Equal Pay Act 1970. Those duties are enforceable between employer and worker as a contractual condition of employment, because the Act says so.
There is another example in the Employment Act 2002, but the draft regulations in that Act have raised questions as to whether the Government are going to go through with that meaning. As has been said, it is not a difficult question of law. It is a simple proposition that has abundant authority from the courts and existing statute. It is that if the breach of a statute or, as here, an order—and by that I mean a group of work people not complying with, or not liking and acting against the effectuation of an order—is a breach of a contractual duty, the right to strike is undoubtedly retained, provided that the other conditions are met. Primarily, it must be action in furtherance of a trade dispute and the conditions imposed by statute as to ballots and other procedural requirements must all be met. Nothing in the amendment affects that. If, however, the statute or order imposes a direct statutory duty and that is contravened, the right to strike is lost—ballot or no ballot, trade dispute or no trade dispute.
That is not my proposition; it is the proposition of the Court of Appeal directed in Meade v Haringey Borough Council, which is reported in 1979 Industrial Cases Reports 494. In that case, two judges at the Court of Appeal made it quite clear. Lord Denning, Master of the Rolls, stated at page 505, that the legislation,gives them [the union] immunity if they induce a person to break a contract. But it gives them no immunity if they induce a local authority to break a statutory duty",1142 which was in issue in that case and which they had done. Lord Justice Eveleigh put it simply and in the same way. He said:They [the union] may in proper circumstances induce others to break a contract in furtherance of a trade dispute but they are not entitled to order or solicit a breach of statutory duty".The Bill leaves the position unclear. I must refer to the Minister in Grand Committee. The way he put it leaves an ambiguity even in respect of the intended application. He said:To cut a long story short, if an order is issued under the Bill it directly operates on the conditions of service of the members of the fire brigade. The conditions of service are altered by the operation of the law immediately the order comes into force".—[Official Report, 14/7/03; col. 187.]The quotation is longer, but if the Minister does not mind I shall not read the rest. It merely confirms that way of putting it. I have discussed it with a large number of colleagues and scholars on the subject and the majority view is that it appears clearly to impose a statutory duty to comply with the order.
Later at col. GC190, the Minister said that he was not sure what the effect of an amendment I was moving would be. He went on to say that,any terms imposed by order under the Bill will be contractual in any case. It is difficult to know whether the amendment adds or removes anything. In some ways I have just made an argument for accepting my noble friend's amendment but I shall certainly not do so as to do so would be fraught with difficulty and would constitute uncharted waters. As I say, the imposition of any terms by order under the Bill is contractual anyway and therefore limiting the definition would not have any effect overall. As I do not know whether the amendment adds or removes anything. I shall reject it for the time being. My noble friend is always free to explore the matter at a later stage".—[Official Report, 14/7/03; col. GC190.]We are exploring it now. We are saying, "Please, put the second meaning clearly on the face of the Bill. If you do not, you raise the question for the courts as to the meaning Parliament has put upon the clause in question and here on the order in question". The meaning is not what the Minister may intend.
In Grand Committee, I referred to the recent speeches of the noble and learned Law Lords in the constitutionally important case of Wilson v Department of Transport, decided on 10th July 2003 and available in your Lordships' Judicial Office. To sum up the main thrust of the judgments, with which all five Law Lords agreed, the noble and learned Lord, Lord Nicholls of Birkenhead, said:The courts are strictly unable to take cognisance of the Minister's statements…they cannot control the meaning of an Act of Parliament…the courts must be careful not to treat the Ministerial or other statements as indicative of the objective intention of Parliament. Nor should the courts give a Ministerial statement, whether made inside or outside Parliament, determinative weight. It should not be supposed that members necessarily agreed with the Minister's reasoning or his conclusions".The reason for the amendment is to introduce clarity into the Bill. We do not want to leave the question, as Lord Denning put it in another case in 1978, to be a matter of guesswork for the courts in deciding what Parliament intended. He said then that, where 1143 Parliament did not say what it meant in relation to the legal effect or nature of a statute or order imposing duties, he felt that it was a matter of,guesswork…you might as well",said Lord Denning, with his usual aphorism to make the point deeply,toss a coin".We do not believe that the courts should be left in the position of having to toss a coin to decide whether this is a direct statutory duty or an imposition of contractual terms operating by law as obligatory terms of the contract. We are of that view, especially because the right to strike depends on which choice one makes, as the Court of Appeal stated clearly in the case of Meade v Haringey Borough council in 1979.
In one sense, the amendment asks the Government simply to clarify what they appear to have said in one part of their explanation in Grand Committee; in another sense, it also asks them not to fall into the kind of pit into which previous governments since 1875 have, for some reason or other, regularly fallen. Why it has happened is a matter of great debate among those involved in the scholarship of the subject. There is no need for it to happen here.
I hope that the Minister can give us some encouragement that, if the Government do not like the precise words of the amendment, they will at least accept the thrust of it and guarantee that, by the end of Third Reading, we shall see the right to take industrial action, as they intend, properly inscribed in the Bill. I beg to move.
§ Lord McCarthy
My noble friend has developed the argument with particular reference to the uncertain state of the law. He cited many extremely persuasive authorities, including the judgments of Lord Denning. The Government may well say—to some extent, they have said—"Well, time will tell. It may turn out that you are right: it may turn out that we are right", although it is not absolutely clear that what they are saying is right They do not come before us and say, "Well, conditions of service are the same thing as contracts of employment". They do not go so far as to say that, but they say that there will still be a right to strike. One might say that whether there is a right to strike or whether the right to strike remains as it is at present is something which, in the fullness of time, the courts will decide.
However, I want to suggest, as I tried to do in Grand Committee, that the striker or would-be striker or the member of the fire service would not be able to wait or, I suggest, would be unlikely to be able to wait for the courts to decide. In that connection, my noble friend mentioned the debate that we had with the noble Lord, Lord Rooker, on 14th July, as reported at cols. GC 181 and so on of Hansard. I sought to explore the sense in which the Government could continue to say that a right to strike remained.
I think I understood—the point of this intervention is to see whether I understood correctly—what the noble Lord, Lord Rooker, said. It seemed to me that he was saying that if there was industrial action and it 1144 was lawful in the sense that there had been a ballot, nevertheless, if the Secretary of State issued an order and created a statutory duty, the chances are that it might well eventually transpire that that statutory duty would create a liability. If any worker was found to be frustrating that statutory duty that would be an unlawful act, but that it might not be; and the legal process might be gone through to find out.
The point was that the right to strike had not been got rid of. It might have been made a little more faint. It might have been temporarily put upon a shelf, but it would re-emerge. I sought to find out the sense in which it would re-emerge. I think that the noble Lord was saying (at col. GC 181 of Hansard) that. of course, so long as the workers conformed or the employers did nothing about the fact that they were not conforming in the enforcement of the statutory duty, the time would come when the terms and conditions of employment would be changed. People would return to work, there would be peace, tranquillity and quietness and a new right to strike would rise. The right to strike would still be there in exactly the same way as it is for the labour force. It would still be there because—I suggest solely because—there was no order.
As long as there was no order, as long as there was peace and quiet and, in the case of a dispute—the Minister said that the dispute could be about something which had been the subject of an order—as long as no industrial action was taken, or, as long as the union and the members only took industrial action after a lawful ballot, the right to strike in the case of the Fire Service would rise again in all its purity.
The trouble with that is that there might then be another order. The moment that order is introduced, the workers concerned would find that they did not have the right to strike. That is a very poor right to strike, which does not affect other workers. Other workers do not have the threat that if they start to have any effective industrial action they are made the subject of an order which cancels their right to strike for the time being.
If I am right and that is the sense in which the Government are saying that a right to strike will remain, I ask the House to think of the position of the individual workers. The chances are they will be dismissed. No doubt the employer will he told through guidance in legal journals and so forth: "This is not a breach of contract but the interruption of an imposed condition of service. You can dismiss those people".
What would be the position of the individual workers then? If the matter went to the current Master of the Rolls he may say that they are protected, but they will be on stones. That is the point. What would be the position of the chairmen and side members of industrial tribunals who find that people had been dismissed in that context? Of course, the union would come along and take the case to an industrial tribunal. Meanwhile, the individual worker is dismissed. Even if the tribunal found in his favour he would get only compensation; he would not get back his job. Then we would find out whether the Government is right or the 1145 noble Lord, Lord Wedderburn, is right. That is not enough, and that is not fair. That is not, in effect, a right to strike. It is a right to strike which the workers use at their peril; and it is a right to strike which can be interrupted effectively at any moment by the Secretary of State imposing an order. I ask the Government, therefore, to think again and to agree to this amendment.
§ 5.30 p.m.
§ Baroness Turner of Camden
My Lords, this really is a very simple amendment. My two noble friends have advanced a great deal of legal argument in support of it. I do not want to follow down that path. It seems to be a simple question: if a union orders a strike in breach of a contract of employment and goes through all the processes required—balloting and so on—there would be immunity; but if the strike is in breach of a statutory order the union has problems. The issue is as simple as that.
§ Lord Rooker
My Lords, the issue is even simpler than my noble friend Lady Turner states. Amendment No. 11 seeks to put on the face of the Bill that the provisions of any order under Clause 1(1)(a) about terms and conditions of service shall have effect as binding terms of the contracts of employment of fire brigade members to whom it applies. It is simple because we have already said that we propose that such orders should indeed take effect as new or revised contractual terms. That appears to be in effect stating the obvious.
The amendment adds nothing whatever to our intention. In fact it would produce a restriction of uncertain effect and offer opportunities for debate; and it offers absolutely nothing additional to fire brigade staff. I do not want to wind my noble friends up, but I have not heard from any modern practising academic or industrial relations expert to the effect that we have a problem with this part of the Bill. Therefore, on that basis, I invite my noble friend to withdraw the amendment.
§ Lord Wedderburn of Charlton
My Lords, I am disappointed by that reply because—it would not be unfair to say—my noble friend suggests that it is nonsense to move this amendment. The Government may propose that the order takes effect by way of obligatory terms and conditions of employment. One is bound to ask why they do not propose it in the Bill. What on earth would they lose by making that clear in the Bill? What are they afraid of?
Secondly, is the Minister denying that where a legal duty is imposed by a statute, as in this Bill, it is for the courts to interpret—not for the Ministers to interpret if they have chosen to say nothing—what kind of legal duty it is? I refrained from pointing this out, but so many matters were raised by my noble friend's reply that I must put some of them on record. First, on the fire authority's duty in Clause 1(9), the Government go out of their way to make it clear that they are imposing a statutory duty. Why do they not adopt a similar 1146 clarification concerning the order on conditions of service? Conditions of service are not defined in the Bill. We are told what they include in a later subsection.
Furthermore, the Minister says that no writer. scholarly expert, or, as I understood him, anyone else he knows of, thinks that there is a problem. I invite him to stand up now and to say who he has consulted. I have consulted—I am not at liberty to divulge their names, but I shall certainly get them by Third Reading if they agree—a number of people of various types, shades and hues, not all of them necessarily of bad character under the Criminal Justice Bill, who take the view that there is a problem here. One even takes the view that the issue is both contractual and statutory.
Frankly, I do not think that we are at liberty to adopt such an interpretation. They all agree there is a problem, but my noble friend does not. What is this curious lethargy in trade union legislation? It is only for workers and their right to strike that these gaps are left. It happened in 1871, 1875 and even in 1906, 1913 and subsequent statutes, although not so much, I am proud to say, in the Labour Government's legislation in 1974 and 1992, when several problems of this sort were solved. Why do the Government want to create another one?
Since my noble friend has taken this attitude of blasésmugness, I wish to put on record the simple proposition that the union with a ballot and a trade dispute has the right to induce a breach of contract and is protected. A union with a ballot and a trade dispute does not have any protection, nor do its workers individually, as my noble friend Lord McCarthy has said, in respect of an inducement of a breach of statutory duty.
I wish to put on record the case of Meade v Haringey Borough Council of which the Minister, I say with great respect, appeared unfamiliar; and the case of the Department of Transport v Williams, (1993)—these are in all the books—in which the Lord Justice Dillon said that,anything which is illegal under any statute provides the unlawful means",for tortious liability.
I wish to put on record the judgments of Associated British Ports v the TGWU(1989) in the Court of Appeal, of Rookes v Barnard(1964), of Stratford v Lindley(1965) and the case of Acrow Automation v Rex Chainbelt(1971). If the Minister is not familiar with those decisions, he should be by Third Reading.
I also refer to the case of Michaels v Taylor Woodrow(2001), Chancery 502, in which Mr Justice Laddie refused the entire authorities including four cases in the 1999–2000 era that manifestly support the point that this simple, clarificatory amendment is trying to make.
Whatever the intentions of the Government, are they really so proud and arrogant in their drafting of the Bill that they refuse to include a clear protection, which they say they intend, for a particular group of workers in the public service? I cannot understand the Government's position or the reply that we received 1147 today. The matter needs a great deal more work by those who advise the Minister and the Minister himself. I say that because—I must add this point because noble Lords who were not in Grand Committee will not have heard it and there are very few noble Lords present tonight to consider the rights of firefighters—an injunction can be obtained not by those who prove a final case, but by those who prove an arguable case.
There is no difficulty in law about that. There are problems about how that applies when the balance of convenience lies with the claimant and so forth. However, an arguable case has to be proved. is the Minister really saying that, with the Bill as drafted, without the clarification that we seek, there would never be an arguable case that an order under Clause 1(1)(a) imposed a statutory not a contractual duty? If he is saying that, your Lordships' eyebrows should reach beyond the ceiling.
This is a helpful amendment for the Government. They say that they want to make it clear that firefighters are not in any way discriminated against in terms of the normal rules of industrial action. We say the same, but it is not made clear in the Bill. Our amendment would make it clear, although it will not settle the question, as later amendments will show. There are other matters to be raised. As my noble friend Lady Turner of Camden said, this is the simplest of simple amendments to make progress on this matter. That is why we moved it, genuinely hoping for a positive response of some sort from my noble friend the Minister.
However, if there is no indication that this fundamental point which is coming to be well known in the trade union movement can be addressed properly and professionally by the Government, it will be necessary to return to the matter firmly at Third Reading to press the point with any noble Lords who are in any way concerned about the rights of workers under this Bill. With that, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Lord Wedderburn of Charlton
moved Amendment No. 12:Page 1, line 16, at end insert—(2B) An order made under subsection (1)(b) shall not affect "property" that consists in rights or duties arising from or under a contract of employment, and the provisions of such an order shall not directly or indirectly affect the conditions of service of fire brigade members."The noble Lord said: My Lords, in a sense, the amendment is a mirror image of the one that I have just withdrawn. Although, until a few minutes ago, I had some hopes for it, they are now dimming as the sun sets. As the Bill stands, an order under Clause 1(1)(b) giving directions to fire authority employers could very easily have obligatory consequences that affect the conditions of work of firefighters. An example taken often in Grand Committee is the closure of a station. An order giving directions to close a station, 1148 or changes in the use of appliances on shift work, could have immediate results on employees' conditions of work.
The Government have stated that they do not mean that to happen, and the amendment throws no doubt on that intention. But there is abundant authority that the Government's intentions do not control the interpretation of the Act in the courts. If Parliament does its job—and this is the only House to debate the powers in detail—it is concerned with what the powers are that are placed on the statute book. To ignore that is to treat this House as a talking shop and a club where people stroll through the Lobbies without much consideration.
Not every order under Clause 1(1)(b) will necessarily affect the working conditions of members of a fire brigade. When we considered the provision in Grand Committee, the Minister said:I must make it clear—I think that I did so earlier—that directions to the tire authorities under Clause 1(1)(b) are not intended to be a direct or indirect way of affecting the employment contracts of fire brigade staff. I also gave the example that it could happen that a direction about the use of assets—the physical assets in a station—could have an impact on staff, but that is not the route by which we would seek to change the terms and conditions for staff. We have a power in Clause 1(1)(a) to do that directly—that is a very interesting formulation—so there is no reason to use an indirect route. I can tell noble Lords that we have no plans to use any orders made under Clause 1(1)(b) to affect the rights arising from contracts for work or services. It might happen, purely as an incidental side-effect of a kind of order".He went on to say:We do not want to use the power, and the Bill is drafted widely enough to cope with any disputes … I gave examples originally of appliances remaining in stations when they could be used by somebody else. Clearly, the public did not understand what happened during the previous dispute, so we must overcome that. If it were difficult or impossible to use the powers in respect of, say. an appliance or some specialist piece of equipment ‖ that was needed, we could not say to the public, 'Well, we would have liked to have an order to make sure that we could use an aerial platform, but we could not because it would have affected some exclusion in the Bill about contracts"".—[Official Report, 14/7/03; col. GC 194.]By "contracts" the Minister meant contracts of employment.
We accept all that. But we accept also that, as the Minister said, there would be incidental effects on the working conditions of firefighters. Their duty would be not to do anything to disturb an order coming into effect and operation under Clause 1(1)(b). That is why we have drafted our amendment in its current form:An order made under subsection (1)(b) should not affect 'property"'—it normally would—[in the form of] rights or duties arising from or under a contract of employment".Rights and duties under a contract of employment are obviously included within the notion of property. The amendment also states:The provisions of such an order shall not directly or indirectly affect the conditions of service of fire brigade members".That is what we are asking.
1149 We are taking the Government at their word. We are saying that Clause 1(1)(b) is a direct order to the fire authority on what to do as regards closure of stations, use of appliances and all the other things that the Government want to control by statutory duty. It does not affect the conditions of service, in law, of the firefighters. I cannot understand why the Government cannot accept that, except that the Minister says, as he said about the previous amendment, that it is all nonsense. With great respect, I do not think that is a reply worthy of the Government. I beg to move.
§ 5.45 p.m.
§ Lord Rooker
My Lords, I am unable to accept Amendment No. 12, irrespective of the care and consideration with which my noble friend moved it. Along with other amendments in a similar vein, it makes it difficult—almost impossible—for the Secretary of State to exercise the powers in the Bill that, ultimately, Parliament would give, powers that the elected House has, in principle, agreed that he should have.
The amendment is in two parts, both of which would limit the scope of the Secretary of State to issue orders under Clause 1(1)(b). The first part would prevent the use of the power to give directions about the use or disposal of property where that property consisted of rights and duties under contracts of employment. The second part would prevent the making of an order under Clause 1(1)(b), which would directly or indirectly affect the conditions of service of fire brigade members.
We discussed that in Grand Committee. The position is no different. What I said there is exactly what my noble friend repeated. If the Secretary of State were to judge that action to change terms and conditions of staff were necessary, he would have a direct route under Clause 1(1)(a) and he would not use Clause 1(1)(b). I have made that absolutely clear.
Notwithstanding that, I accept that, under Clause 1(1)(b), there might be an incidental consequence from a direction, for example, aimed at making available facilities or equipment to those trying to provide emergency cover. Nevertheless, I am unaware of any plans to use orders under Clause 1(1)(b) to affect rights arising from contracts for work or services. To be honest, if we were to accept the amendment, we could not make such a direction. It would be impossible, even if everyone agreed that the intention was appropriate and benign.
As I said, I cannot accept any amendment—I do not want to upset anyone—that simply seeks to frustrate or make impossible the effective use of the powers. That is what this amendment seeks to do; that is what the effect would be. The public would not understand it if they were denied the protection of crucial equipment because of an exclusion about contracts. Amendment No. 12 would put an arbitrary restriction 1150 on the powers in the Bill and contribute nothing to public safety. Therefore, I invite my noble friend to withdraw the amendment.
§ Lord Wedderburn of Charlton
My Lords, the Minister ended on the sort of note that he constantly injected in Grand Committee, which I can describe only as the habit of some midfield defence players: go for the man, not the ball. He said that the amendment sought to frustrate the Bill. I hope that he will think again about that. We are trying to get clarity into the Bill. We are trying to say what the Government say they intend. What the elected House has got to do with it, I do not know. It never discussed it; it did not discuss the previous amendment or this amendment or the matters concerning them. Nor did the Government choose to explain them to the other House.
We said all that in Grand Committee. I do not want to go over the ground of Grand Committee because, in retrospect, some of it was rather painful—just as that last remark was. We are not frustrating the Bill. We are genuinely moving amendments that concern especially—it is true—the persons employed in fire brigades, but also the fire authorities, the employers.
My noble friend has said, quite rightly, that if they thought about it, the Government would normally seek to make an order under Clause 1(1)(b), telling the fire authorities what to do in respect of the closure of stations, use of appliances and so forth; and, if they were to think of perfecting the conditions of employment for firefighters, they would make an order under Clause 1(1)(a). I quite understand that. But he is also obliged to accept once again, as he accepted in Committee, that an incidental effect of a Clause 1(1)(b) order where no Clause 1(1)(a) order is made, would be that it would affect or be likely to affect the conditions of work of firefighters.
We do not think that it is right for the Government or for Ministers to take that power. If they mean to affect the conditions of firefighters, tell them that by way of a Clause 1(1)(a) order, although, as we have just seen on the previous amendment, they are in a terrible muddle about how that legal effect would come about. If they intend a Clause 1(1)(b) order to affect only the fire authorities—as the Bill suggests in places, but the Government are now constrained to agree that it may affect others—then surely this should be cleared up.
I hesitate to put it this way, but I am not interested in my noble friend's plans, as he put it. He has said that the Government have no plans or intention to do this. However, if I am defending a firefighter or a union in court, I cannot refer to that. In its judicial capacity, the House of Lords told us that in July this year in the Wilson case. Does no one read any of what is said by the noble and learned Lords in our Judicial Committee? You cannot give that remark to a court as controlling the meaning of these clauses. We are asking for it be made clear on the face of the Bill that a Clause 1(1)(b) order does not affect, in the legal sense, the conditions of work of those employed in this public service.
1151 If we chose the wrong wording in the amendment, then of course that is another matter. But our intention is not to frustrate the Bill and it is quite shocking to hear my noble friend on the Front Bench return to that kind of language, which was used so often in Grand Committee. However, I shall refrain from going into that territory. We have put our arguments on the record and they stand as they are. If the Minister cannot think better before Third Reading, it may and certainly should be necessary to come back to this matter. With that, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 13 not moved.]
§ Baroness Turner of Camden
moved Amendment No. 14:Page 1, line 17. leave out from "section" to "the" in line 18 and insert "save for an order made under subsection (1)(b) which he declares for the reasons which he states to be required by reason of an emergencyThe noble Baroness said: My Lords, this amendment is very similar to the amendment I moved in Grand Committee, but with an important difference which I shall explain. It seeks to remove from subsection (3) the words,that fixes or modifies conditions of service of fire brigade members".The effect of this would be automatically to oblige the Secretary of State to consult in relation to what is provided for in subsection (1)(b), which states,give specific or general directions to fire authorities about the use or disposal of property or facilities".It seemed to me in Grand Committee that decisions which affect the provision of local facilities—either the disposal of property or the use to which that property is put, whether leased or otherwise disposed of—could have an effect on the workforce in that particular location. There may be less reason to have a certain type of person or there may be a need for a different kind of workforce. This could have a major effect on fire service employees working and probably living in the area. It therefore seems entirely reasonable that an obligation should be put on the Secretary of State to consult about the conditions of service for fire brigade members in the way suggested.
That still seems reasonable to me, but I listened very carefully to what the Minister had to say in Grand Committee. He made the powerful argument that there could be emergency situations in which the amount of time required for a consultation process would simply not be available. He said that,there could sometimes be a need for speed so that the public property is protected".—[Official Report, 3/7/03; col. GC 265.]Our new amendment attempts to meet that valid argument. We seek to insert the words,save for an order made under subsection (1)(b) which he declares for the reasons which he states to be required by reason of an emergency".In other words, under normal circumstances consultation about these matters would be expected to take place, but in an emergency of course it is accepted that there may very well be no time for this to be done.
1152 We have attempted to meet the requirements as set out by the Minister in Grand Committee and I hope that he will find our proposed solution acceptable. I said in Grand Committee that I would take note of what he had said and then come back to this on Report in an attempt to deal with the valid arguments that he then advanced. I beg to move.
§ Lord Wedderburn of Charlton
My Lords, I had hoped that it would not be necessary to move the amendment because, in Committee, we moved an amendment seeking to limit to emergencies the operation of orders under Clause 1(1)(a) and 1(1)(b). We set out a notion of what an emergency might be, including a likely set of events which the Minister could see would need rapid action. That is why, as my noble friend Lady Turner said—I shall not repeat her quotation—we have taken note of what the Minister said and repeated it, in a brief form, in Amendment No. 14, under which the Secretary of State must declare, for the reasons he states, that the action needed is required by reason of an emergency. I believe that that was the only argument raised against our attempt previously to include Clause 1(1)(a) and 1(1)(b) orders in the clause. I hope the amendment will be given favourable consideration.
§ Lord Rooker
My Lords, I understand why my noble friends have come back on this issue. In many ways—although I do not have it immediately to hand—the amendment is consequential on an earlier amendment we have discussed. I believe it may have been Amendment No. 1.
Basically, the amendment seeks to change the drafting of Clause 1(3) to bring it into line with what was proposed in Amendment No. 1—it was Amendment No. 1 to which I was referring—about having to declare an emergency before using the powers in the Bill. The consultation required in Clause 1(3) would continue to apply to an order about terms and conditions of service but it would extend to any order made under Clause 1(1)(b) where the Secretary of State failed first to declare an emergency.
The current negotiating body referred to in subsection (3), as I understand it, is the National Joint Council, the remit of which covers terms and conditions of service—pay and conditions, in other words. It is the pay and conditions negotiating body. It has no role whatever in relation to other Fire Service matters, to the best of my knowledge. We therefore do not think it appropriate to require that body to be consulted about the use of Clause 1(1)(b) powers.
§ Lord Wedderburn of Charlton
My Lords, I am grateful to my noble friend for allowing me to put this point to him. Has he not just admitted that the Clause 1(1)(b) order may well incidentally affect the conditions of work of firefighters? Would that not be a proper subject for discussion?
§ Lord Rooker
No, my Lords. My noble friend puts his question in a somewhat substantive way. It is not the way in which I have put the issue about how a 1153 Clause 1(1)(b) order may have an incidental consequence on conditions. That would not be its central role. If the central role was to do something about the terms and conditions of individual members of the Fire Service, clearly the Secretary of State would use Clause 1(1)(a). We would consider that before we used Clause 1(1)(b) to ensure that there was not a substantial change in conditions.
We live in the real world and we have accepted that there might be an incidental consequence on conditions as a result of using a Clause 1(1)(b) order, but that would not be its main purpose. The reasons I have given on the previous amendment would cover such consequences. But it is not a substantial issue to be written on the face of the Bill that the negotiating body—which is a pay and conditions negotiating body—will have a statutory role in all other Fire Service matters outside the narrow confines of pay and conditions. Although I do not have the amendment immediately to hand, it appeared to us consequential on Amendment No. 1, and therefore stands and falls with it. In the light of our earlier discussion, I cannot accept the amendment.
§ Baroness Turner of Camden
My Lords, my noble friend the Minister is of course quite right. Had Amendment No. 1, which we proposed at the previous sitting, been accepted by the Government, it would not be necessary to move this amendment, because it would have covered the whole of the Bill. The intention of what we can call the emergency amendment that we moved and I spoke to was to cover all the powers in the Bill. But because it was not accepted, it was felt necessary to follow what had been said in Committee about emergencies and to do so in this way.
I am not entirely happy about the Minister's response. He says it is not a substantial issue but, as he accepts, there could be circumstances in which conditions would be affected quite materially. Therefore, I am not at all persuaded that the amendment is unnecessary. But in the light of what has been said this afternoon, I beg leave, at least for the time being, to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Lord McCarthy
moved Amendment No. 15:Page 2, line 2, at end insert—(3A) Where a report shows that there is an agreement between the members of the negotiating body concerning matters dealt with in his proposals under subsection (1)(a), the Secretary of State shall, save in an exceptional situation, withdraw any proposals which are in conflict with that agreement and engage in further consultation with the members of that body.(3B) An exceptional situation exists when the Secretary of State declares that the terms of an agreement made by the members are unacceptable for the reasons set out in his declaration, such reasons which may include objections to the increases in pay or changes in conditions of service or similar associated matters contained in the agreement.The noble Lord said: My Lords, the object of this amendment is to try to pick up various statements made in Committee. The Minister was at that time trying to explain what the attitude of the Secretary of State would he where there was agreement between the 1154 parties. We tried, in a number of amendments, to say surely a power as powerful as the power in this Bill would be introduced and enforced only in extreme circumstances. For much of the time, the Minister was prepared to say that. In almost all the concrete examples which he placed before us of the circumstances in which the powers would be used, there was undoubtedly an element of emergency. Indeed, at one stage, I thought he said that the recent 12-month dispute between the union and the employer was not an emergency. That made us feel that the emergency which would justify the use of the Bill would be very exceptional—terrorism, perhaps.
That being the case, it seemed reasonable to suggest that when there was an agreement between the parties and no question of an industrial dispute of any kind—and, we would have thought, no emergency, because the two parties had agreed among themselves—surely it would be possible to say on the face of the Bill, if we can get the wording right, that in those circumstances the Bill would not be used. But we have tabled this amendment because it was not possible to get the Minister to agree. At one stage, he went so far as to tell us what would be the circumstances in which there was an agreement, under which, nevertheless, the Government would be justified in imposing the powers in the Bill. He said:I was asked whether, if employers and trade unions agree, they should not therefore be allowed to carry on. I made the point that to differentiate between the public and the private sector, the question is who pays. If the employer is prepared to pay for a negotiated deal, fine. In the public sector, the employer, at the end of the day will be local government or Parliament, in the sense of disbursing taxpayers' money".—[Official Report, 3/7/03; col. GC274.]So there was a distinction between the public and private sectors.
He gave examples of other circumstances, the most important of which was where, although there was agreement between the two sides, the employer and the union may have got together or ganged up, so that in the public interest a reserve power had to be left for where a negotiated settlement, although agreed. was not in the public interest. The circumstances would be either that the union was offered too much money or that there was insufficient improvement in productivity. The Government would need reserve powers for that. Well, OK.
So we have tried through the amendment to cover those circumstances. The amendment states:Where a report shows that there is an agreement between the members of the negotiating body concerning matters dealt with in his proposals under subsection (1)(a), the Secretary of State shall, save in an exceptional situation"—not in an emergency, in an exceptional situation—withdraw any proposals which are in conflict with that agreement and engage in further consultation with the members of that body".Note that we are not saying that his veto can be overruled. We are not saying that in those circumstances, the parties can say, "Unless you can specify an exceptional situation, we are free to agree". We are saying that the Secretary of State should take it away and think about it and that the exceptional situation should be defined in the Bill.
1155 That seems reasonable. We therefore state in proposed new subsection (3B):An exceptional situation exists when the Secretary of State declares that the terms of an agreement made by the members are unacceptable for the reasons set out in his declaration".We even go so far as to as to state what they might be: the reasons,may include objections to the increases in pay or changes in conditions of service or similar associated matters contained in the agreement".I know, because I have had it before and shall have it again, that the Government will say that those words are not reasonable, sensible, adequate, enough or sufficient. OK, but we do not stick by our words; we stick by a principle. The Government can take it away and write it again; they can do what they like. The Minister said that, most of the time, the authority of the order would be used when there was an emergency—we are setting emergencies aside—and that he could not accept an agreement when there was an exceptional situation, so why cannot we specify in the Bill what may constitute those unacceptable conditions?
That is reasonable and sensible and I look forward to hearing what the Minister says. Of course, if he says, as he said again tonight—I must mention it, although my noble friend has already done so—that every time we try to change how the Bill works, we are frustrating it, we will not get far. None of the amendments is what is conveniently called a wrecking amendment—at least not intentionally. They are not intended to make it impossible to use the power; not at all. They are intended to improve the Bill.
If the Bill is presented as impossible to improve and if all attempts to change, modify or restrict its application are frustrations, we will not get far. I suggest that that is not how amendments are treated in Parliament or regarded in this House. I therefore hope that the Minister will give the amendment friendly consideration. I beg to move.
§ Lord Wedderburn of Charlton
As the Bill has a relatively short time to go, with only Third Reading left, we must now envisage that the Government are going to reject every amendment. I had not really thought about that until this evening; I had expected some argument about words or exact phrases, but the amendments will simply not be considered.
What my noble friends and I, who have tabled the amendments, cannot accept is that the Bill somehow originated in a drafting immaculate conception and is perfect. That is the Government's position so far, and I hope it will not extend to the amendment. With my greatest respect to my noble friend the Minister—and he is my noble friend—he has already reminded me tonight, as I thought I would not be reminded, of that great member of our party, Ernest Bevin. One of Ernest Bevin's great remarks when he did not like what was about to be said in a speech was, "You don't want to open that Pandora's Box, because you never know what Trojan Horses will leap out". There is a certain flavour of that about some of my noble friend's answers to amendments.
1156 I shall quote in full the passage to which my noble friend Lord McCarthy referred. On 14th July in Grand Committee (at col. GC 204 of Hansard), there was an exchange between the noble Lord, Lord Campbell of Alloway, and my noble friend Lord Rooker. The noble Lord, Lord Campbell of Alloway said:With respect, I hope that I may ask the noble Lord a question. He said the Bill would be used only if the parties"—that is, the parties to the national joint council—disagreed. That is not quite what he means. He said it but I do not think that he meant it. What he meant was, if the parties agree with what we want them to do, we shall not use the Bill. But if they do not—There then followed an intervention from the noble Lord, Lord Rooker; namely. "Yes, sure". After which, the noble Lord, Lord Campbell of Alloway, went on to remark:But if the parties do not agree with what we want them to do, we shall impose the Bill"—"we" meaning the Government. The noble Lord. Lord Rooker, replied:That is entirely the case. The noble Lord expressed the matter perfectly. The two parties could have a sweetheart arrangement—it is not unknown between employers and trade unions to have a sweetheart arrangement—and say to the Secretary of State. 'By the way, we have agreed; here is the bill'. We would say, 'Sorry, we are not paying the bill'. We do not have a blank cheque".—[Official Report, 14/7/03; col. GC 204.]There are two possible answers to that argument. As the Government frequently wish to refer to common sense and real life, presumably the Secretary of State would have done his best to persuade the fire authority employers not to enter into such an agreement. We take the case where they have, or where the parties have come to agreement—it could even be within the Secretary of State's total expenditure provisions. They might have come to a deal in which the ways of implementing the agreement were very different from those that the Secretary of State wanted. If the parties agree on that, with the help of conciliation, mediation, arbitration or in some other way, we believe that the Secretary of State should be asked to pause before he goes ahead with the order. That is all that, the amendment says. I cannot see what is wrong with that, and I hope that we shall get some acceptance of that approach.
The amendment accepts the spirit—and in many ways, the words—of my noble friend the Minister in Grand Committee. It places them in the Bill together with the following suggestion—namely, where, subject to that, the parties are agreed, the Secretary of State shall withdraw the present proposals that are in conflict with the parties' agreement and engage in some further consultation with the members of the NJC. I hope that the Government can accept the spirit of the amendment.
§ Lord Campbell of Alloway
My Lords, I know that it is Report stage, but I should like to ask the noble Lord a question before he sits down. Does he accept that Amendment No. 15 is wholly dependent on Amendment No. I, that there is a declaration before 1157 the emergency and that the whole machinery is dependent upon that? Is not Amendment No. 15 wholly dependent on Amendment No. 1?
§ Lord Wedderburn of Charlton
My Lords, in the spirit of the previous deliberations on the Bill, I could say that I had already sat down. However, I was semi-sedentary, so I shall answer the noble Lord's kind intervention.
The word "emergency" appeared in Amendment No. 14, not in this amendment. We have used the term "exceptional situation"—although I suppose that might involve an emergency. We understood that to be the objection to the case in which the Secretary of State says, "You may have come to an agreement between you—the parties to the NJC—but I cannot accept that". One instance that we took was the main instance that my noble friend the Minister gave whereby increases in pay or changes in conditions of service, and the like, are contained in the agreement of the parties. So that could be an emergency—I quite accept that—but it is not limited to an emergency. It is limited to exceptional situations of the sort that the Minister described, or so we thought. Perhaps the noble Lord thinks that I am wrong in that.
§ Lord Campbell of Alloway
My Lords, I ask the noble Lord please to look at new subsection (3B) regarding,reasons set out in his declaration".That declaration, and the only reference to a declaration, is a declaration before an emergency. Surely the noble Lord understands that.
§ Lord Wedderburn of Charlton
My Lords, with the greatest respect, I do not understand that. If we had meant a declaration of emergency, we would have said so. The noble Lord really must look at the words we have proposed.
§ 6.15 p.m.
§ Lord Rooker
My Lords, I cannot promise not to use the word "frustrating" again, but I will try. What I can say to my noble friend, believe it or not, is that all the amendments on the Marshalled List have been considered by the policy Ministers involved and myself. Indeed, they have been reconsidered since we started Report stage. So it is not true that we are not considering the amendments.
I take on board my noble friend's old quote about the Trojan horse, but this Bill is not a Trojan horse. This Bill is precise and clear. We have made it crystal clear that we do not want to use it and that its life is limited. It is true that, by using the Bill, the Secretary of State would impose pay and conditions as set out in the relevant order. We are not doing this furtively.
Amendment No. 15 adds further conditions to the consultation arrangements in subsection (3). While it states that where the negotiating body—in this case the national joint council—reaches an agreement on aspects of a proposal by the Secretary of State, the 1158 Secretary of State should withdraw any parts of the proposal that are in conflict with what the negotiating body has agreed and then enter into further consultation. Only in exceptional circumstances can the Secretary of State not withdraw the non-agreed parts of his proposal. To make use of that exception, the Secretary of State must declare that an exceptional situation exists because the terms of the agreement are unacceptable for reasons set out in the declaration. The possible reasons are not listed exhaustively—about which I make no big complaint—but examples include objections to increases in pay or changes in conditions of service.
The Bill already requires the Secretary of State to consult on the proposals made under subsection (1)(a). He is required, as the Bill states, to consider the report of the negotiating body. It is therefore open to him. should the negotiating body disagree with aspects of a proposal, to carry on discussions and seek a resolution. The Bill provides for all that to happen, and we would expect that to happen. However, given certain circumstances, there must come a time when, if necessary, the Secretary of State can push through his proposal. The whole purpose of the Bill is to enable us to draw a line under any future dispute. We hope that it will not come to that, but if it does we need to be able to act with reasonable dispatch. That is what this is about.
The examples given in the amendment of exceptional situations in which the Secretary of State can declare that the terms of an agreement made by the members of the negotiating body are unacceptable are both limited and vague. According to Amendment No. 15, the Secretary of State can object to an agreement on the basis of an increase in pay. Can he also object to the variation in pay between different ranks? We do not know what "similar associated matters" are. The long and short of it—and I do not want to use the "F" word that upsets my noble friends—is that Amendment No. 15 places unnecessary restrictions on the Secretary of State's powers to make the orders under (1)(a), which as I said would be used to draw a line under a dispute only after all the normal rules and negotiated procedures have failed. Those are the only circumstances in which they would be used. We cannot accept those unnecessary restrictions on the Secretary of State's powers at the point that we would have reached in a dispute. Therefore, I request that my noble friend withdraws his amendment.
§ Lord McCarthy
My Lords, it seems to me that the Minister is contradicting himself. For a large part of the time he tells us that the relevant provision is already on the face of the Bill. Apparently, the Bill provides an almost infinite number of opportunities for consultation. If that is the case, the addition of the provision that we are discussing is not the end of the world. It is part of the Bill. It is what the Bill is in favour of. The Bill is a consultation Bill until the chopper falls. That is what the amendment says. The amendment does not say—as one or two of our amendments in Committee said—that when there is an 1159 agreement between the parties, for example, on the application of an agreement and what it means—not a new agreement—the Government might consider the possibility of saying that the Secretary of State cannot turn it over. But we have dropped that. We are getting more moderate all the time but it does not do us any good.
What we are saying here is that there could he further consultation with the members of the body. I am bound to say that the Government will get in a terrible mess with the Bill and this group of workers when the information and consultation directive is finally enforced because they will not be able to dismiss all these matters and say that they will not consult about how workers are affected by being moved from one place to another. They will have to consult on such matters if they are to honour the directive. They might as well get used to that. We have tried to make the provision as much like the ideas of the Government, as expressed by the Minister, as possible. When particular circumstances apply, surely there could be the limitation that we propose on the use of the Bill.
I did not want to quote from the White Paper, Our Fire and Rescue Service because when we quoted from it in Committee the Minister did not like it. He gets frustrated when we do that. But the fact is that the Government are in a mess about what they are going to do with regard to pay in the Fire Service and the circumstances in which they will insist that pay is either reasonable or unreasonable and impose their order. Paragraph 7.14 of Our Fire and Rescue Service states:Finally, we intend to take powers to give guidance to any negotiating body which it would have to take into account in its work. The government has a legitimate interest in the outcome of pay negotiations and the impact on public sector pay policy"—I must say I am pleased to hear that we have a pay policy—as well as the impact on the operation of the service"—that is the works side of the thing—but we should not and do not want to step into the shoes of the fire and rescue authorities as employers"—yet they have this Bill.Rather than be drawn into detailed consideration of options as negotiations develop"—that is what we are trying to facilitate by our amendment—we will set out our requirements openly before negotiations start. It will then he for the two sides to reach agreement within those limits".I suggest that the Government are bobbing about. They do not really know whether they will specify firm limits and tell the negotiators to confine them in that way. They do not know the circumstances in which they will say, "If you do not reach agreement and say what we want you to say, we shall impose the Bill and the orders".
The more we can put on the face of the Bill ways in which the Government might consult and consult and consult again rather than impose the orders, the better it will he for industrial relations and the Government. However, we shall not convince them tonight so I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Baroness Turner of Camden
moved Amendment No. 16:Page 2, line 7, at end insert "and(c) should be consulted in accordance with the guidance issued for and advice on "best practice" given to fire authorities in respect of integrated risk management planning,The noble Baroness said: My Lords, this part of the Bill deals with the use of property or facilities and says that the Secretary of State must consult persons who, in his opinion, are,likely to be affected … or … represent persons who are, in his opinion, likely to be so affected".It so happens that the Government have decided that fire authorities must produce integrated risk management plans. Those are referred to in the agreement recently signed between the fire authorities and the FBU. Those plans will include not only the provision of appropriate cover to respond to tire and other emergencies but take into account other factors such as community fire safety, which is the subject to which the provisions relate.
Guidance notes in relation to consultation have also been produced. They are intended for fire authorities—I have a copy—and are extremely comprehensive. As that guidance is available and presumably has complete government approval, there seems no reason why it should not be used in the framework of the Bill. The Secretary of State will be entitled, within the terms of the Bill, to make orders in relation to the use of property or facilities, the area covered by the guidance in respect of integrated risk management planning.
The issue was not raised in Committee, but is fresh. I would therefore welcome the Minister's comments. The amendment is intended to be helpful. I beg to move.
§ Lord Wedderburn of Charlton
My Lords, I have had problems—I think that I mentioned them in Grand Committee—about such points. It is perfectly true that the Bill requires, especially in relation to Clause 1(1)(b) orders, a certain degree of consultation. My problem for some time has been that I genuinely do not understand the relationship of the provisions, especially that on consultation with regard to Clause 1(1)(b) orders, with other legislation. I was about to say that that legislation was going through the House, but we have heard tonight that some of it has gone through.
The three relevant pieces of legislation are the Bill, the Local Government Act, and what is about to be the civil contingencies Bill. I do not think it wrong to mention that very important Bill, as your Lordships have set up a special procedure in a committee to consider it. I take it that noble Lords who have shown an interest in this Bill will also know what is being proposed in that Bill. It was from that that we drew many of our suggestions on what might constitute an emergency in regard to Amendment No. 1, which was discussed when we last considered the Bill.
1161 The Local Government Act contains some discussion of the Fire Service, of course, because it repeals the previous provisions in regard to the Secretary of State's powers. As I understand it, it is primarily the relevant Act under which what is at present a consultation draft has been issued. That draft, mentioned by my noble friend, states:Circumstances may arise in which the fire authority might deem it appropriate to amend the policies/standards it has set for prevention and/or intervention activities, or the provision/ location of resources",and so on. It continues:You will therefore need to make arrangements to consult those who may be affected by the changes. These issues are likely to be similar in nature to one or more of those listed in Figure 1, and the guidance given there should form the basis for your decisions about the extent of consultations".There is a direct link with this Bill, because the consultations on similar matters come under Clause 1 in a rather more vague way. The type of consultation required under the risk management plans and the consultation draft is, first, a list of matters that require consultation with:Communities, business organisations, and local authorities in the area covered by the appliance",or by the arrangements concerned, and with "Employee representatives". Those four matters are:Alteration in policies and standards set by the fire authority for attendance to specific types of emergency incident; alteration in the standards and/or targets set for preventative activities to achieve improvement in community safety and/or special appliances; removal from service of pumping and/or special appliances"—and, lastly—change in crewing patterns of one or more appliances, e.g. shift crewed to day-crewed, constant crewed to variable crewed etc".They require that extensive consultation.
There is another type of consultation required that is restricted to employee representatives. It is not about conditions of service directly—perhaps it is so incidentally. Perhaps the Minister will tell us, as he was directly involved in the Local Government Act. They are:Relocation from one fire station to another of a special appliance providing cover across part or all of a brigade's area; changes in the number of personnel provided to crew appliances".This Bill, or some Bill—the Local Government Act does not do it—should mention the relationship between all those consultations and the consultations which are, in a more vague sense, required by the Bill. It is a separate point from those made in previous amendments. It stands by itself. Critics would say that it asks for joined-up government. The amendment asks what the relationship is between the requirements under that Act and the consultation provisions in the Bill. I support my noble friend's amendment.
§ Lord Rooker
My Lords, my noble friend referred to joined-up government. The Government are so well joined up that the Bill is a discrete operation. It is not dependent on the Local Government Act, which has just received Royal Assent. It is not connected with the proposed legislation that will flow from the White 1162 Paper on the reorganisation of the fire services as a whole. It is a Bill that we hope that we do not have to operate.
Given the way that both my noble friends have explained the consultation process, it is easy to see that, in the circumstances in which we know the Bill would be operated, Amendment No. 16 could lead to a situation where it is more difficult for those providing the emergency fire cover at the time to gain prompt access to fire authority assets so that the public can be properly protected.
Therefore, in a way, the case is made, simply because the nature of the consultation that is properly required for drawing up the integrated risk management plan is such that it could—this is why is it not included in the Bill—lead to a situation where we cannot secure prompt access to the firefighting equipment that the services need to fight the fires in the context of the operation of the Bill. I do not mean ordinary situations. It is in the context only of the Bill being in operation.
Amendment No. 16 suggests that those consultations should be conducted in a similar manner to the integrated risk management set-up, which is somewhat different. The guidance that has been issued to fire authorities on that matter rightly includes the list of interested parties that my noble friends have read out. We would expect the fire authorities to consult those bodies.
The integrated risk management plans will be key documents, setting out each fire authority's plans for the standards of emergency cover; local targets; where and when resources should be located et cetera. It is therefore right that the authorities should consult really widely and ensure that all sections of the community—including business, as my noble friend pointed out—have access to the means of influencing the way in which fire and rescue services are delivered in that area. With respect, I must say that that is not what the Bill is about. Therefore, Amendment No. 16, because it would mean that the Secretary of State's ability would be constrained in the circumstances that he would need to operate the Bill, should not be part of the Bill. I ask my noble friend to withdraw it.
§ Lord Wedderburn of Charlton
My Lords, perhaps I may ask my noble friend to clarify what he has just said. First, the integrated risk management consultation provisions clearly and expressly include situations where there may be an emergency. Secondly, the question that arises therefore is whether Clause 1(4) takes account of that width of consultation.
Subsection (4) has not been set out in the debate. It states:Before making an order under this section containing a direction about the use or disposal of property or facilities, the Secretary of State must consult such persons who—1163 In making those consultations, will he take account of the width of consultation required by the integrated risk management provisions or not? If he will, that would be some reassurance.
- (a) are, in his opinion, likely to be affected by the proposed direction, or
- (b) represent persons who are, in his opinion, likely to be so affected, as he thinks fit".
§ Baroness Turner of Camden
My Lords, I am surprised at my noble friend's response. As my noble friend Lord Wedderburn said—I am holding the consultation document in my hand—it seems to me that the fire authority integrated risk management planning document makes arrangements for emergencies. I would have thought that the reference to the document was to the advantage of everyone concerned. It clearly sets out the people who should be consulted and makes appropriate arrangements for emergencies.
We have attempted not only with this amendment but with Amendment No. 1 to try to deal with the Government's repeated statement that this is simply a Bill dealing with emergency situations and it is hoped that they will never have to use the powers set out in it. Unfortunately, that is not set out in the Bill. The Bill makes no reference to use only in emergencies. Our attempts to write it into the Bill have simply been rejected by the Government. That is very unfortunate. In the circumstances, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Lord McCarthy
moved Amendment No. 17:Page 2, line 8, at end insert—(4A) Where the members of the negotiating body inform the Secretary of State that they are in dispute or disagreement relating to a matter on which the Secretary of State submits proposals and that they agree to submit the dispute or disagreement to resolution in a process of conciliation, mediation or arbitration, he shall consult ACAS with a view to establishing such a process with the agreement of the parties.(4B) Where such a process results in proposals by a mediator or an award by an arbitrator or arbitration body, the Secretary of State shall consult with the members of the negotiating body concerning those proposals or that award before proceeding to make an order.The noble Lord said: My Lords, in Grand Committee we sought at considerable length and detail to ascertain the Government's attitude to third-party dispute resolution; that is, conciliation, mediation or arbitration which would normally be provided by ACAS.
We are therefore proposing three amendments. A previous one dealt with an agreement reached between the parties which the Government might want to set aside, whether it was the result of third-party dispute resolution or not. We have two more amendments which are more directly related to the question of third-party dispute resolution. Amendment No. 17 relates to a situation in which there is no agreement between the parties but the parties would like to try third-party dispute resolution. Amendment No. 18 1164 relates to a situation in which there is no agreement but the parties are not agitating for third-party dispute resolution.
It is fair to say that on several occasions the Minister has told us that he is not against third-party dispute resolution. In fact, he said he thought it was a good idea—that is, conciliation, mediation and also arbitration. He stressed to us. as reported at col. GC 283 on 3rd July, the degree to which in this service there are already proposals specifying ways of having third-party dispute resolution. Therefore, how can anyone say that this was a service in which third-party dispute resolution was an alien factor? He said:The arrangements in place between the Fire Brigades Union and the employers already cover the circumstances of arbitration—as a last resort. I accept. Paragraphs 13 and 14 of the constitution of the National Joint Council for Local Authorities' Fire Brigades provide that if the council fails to reach agreement on any matter contained in paragraph 8 of the constitution—that is, matters relating to conditions of service—the matter will be automatically referred to ACAS"—automatically, ex parte. He continued:If the conciliation fails to resolve the dispute, either side of the NJC can refer the matter to ACAS for arbitration and the other side of the NJC is required to participate. So the mechanism already exists".In other words, he sought to argue that various alternative ways of introducing arbitration were not required.
The Minister continued:Given—this has to be clearly stated: I think it is accepted; no one disagrees with it, I hope—that the agreement reached on 13th June was signed by both sides of the national joint council, it follows, therefore, that the arbitration procedures of the national joint council constitution can be applied to it if the circumstances require as it progresses through the process".—[Official Report, 3/7/03; col. GC 283.]That is so, but only if the Secretary of State agrees and only if the arbitration, in particular—that is why we have tabled the amendment—is required as a way of gaining an independent assessment of the solution that the Secretary of State wishes to impose by law.
Perhaps I may take noble Lords back to the dispute which was the genesis of the Bill. I believe it is admitted—it was certainly reported widely in the press—that there were two separate occasions when the parties had either agreed or were about to agree and the Secretary of State intervened. He said that it was no good to reach such an agreement because the Government would not accept it.
Although the Minister told me in Grand Committee that the dispute was not an emergency, nevertheless, if it had turned into an emergency, the Secretary of State would have imposed his own solution at that point because he did not have the Bill then. We are saying that, if he does issue his proposals, there should be some kind of independent access to a verdict which the parties, the newspapers and the public can consider.
Therefore, we say in proposed new subsection (4B):Where such a process results in proposals by a mediator or an award by an arbitrator"—1165 that is, whatever the parties are able to agree—… the Secretary of State shall consult with the members of the negotiating body concerning those proposals or that award before proceeding to make an order".Therefore, the parties do not have that already as a way of appealing against an order. We are not saying that if they decide to come to the Secretary of State and say, "We would like to have what is essentially an independent assessment of your solution", that that immediately becomes a binding arbitration on the parties. We are saying that that was never available to the parties in the previous dispute.
If the Government are to be. in effect, the ghost at the bargaining table, outside the process and telling the employers what they can agree, and, subsequently, if the employers reach an agreement which the Government dislike and do not want and they impose their decision upon the parties, then there should at least, in the interest of equity, be some kind of independent assessment of the validity and fairness of what is about to be imposed by law. I beg to move.
§ 6.45 p.m.
§ Lord Rooker
My Lords, I apologise to my noble friend, who quoted what I said in Committee, because what I am about to say is word for word what I said then, so he will hear it for the second time. I believe the reasons are wholly justified because, frankly, we cannot accept Amendment No. 17.
There is a set of amendments, some of which we shall come to shortly, which would make it difficult for the Secretary of State to exercise the powers in the Bill which. I repeat, the elected House, although not having debated all the details, has agreed in principle he should have.
A number of noble Lords and, indeed, some Members of the other place, have repeatedly called for the Bill to provide for arbitration between the parties. We have made it clear that in the Government's view—I keep putting a caveat on this—in circumstances where the Bill is in operation and where it is necessary to draw a line under any future dispute, it is not appropriate to include such provisions in the Bill. We have said that for a number of reasons.
We believe that the democratically elected Secretary of State with overall responsibility for the fire service—the Deputy Prime Minister—is the appropriate person to settle the dispute if the two parties cannot agree. That is in the context of the Bill where he has to impose a solution; I accept that.
The major causes of disagreement in the recent dispute have been on matters which are not capable of being arbitrated; for example, how the service should move from nationally prescribed standards of fire cover to a locally determined risk-based approach to fire cover.
It is difficult to see how even the best independent arbitrator could be better placed to make informed judgments than those directly involved in managing the service, or those in Government with policy responsibility for it.
1166 I repeat that the Bill requires the Secretary of State to consult a negotiating body on his proposal for when he will fix or modify; that is, impose conditions of service. That means that he has to take into account their views before making his final decision. He will be required to do that otherwise he would be up before my noble and learned friends.
§ Lord Wedderburn of Charlton
My Lords, I will not go into the question of when that could be raised in court. I think that that is highly speculative. What I want to put to my noble friend—I am grateful to him for allowing me to do so—is that the Government have accepted (we are not concerned with the clause at present but the Bill is joined up) a new clause in the Bill which refers to the June 2003 agreement between the Fire Brigades Union and the local authority fire service employers, and accepted a statement, for what it is worth, that the Act does not affect the possibility of parties agreeing on a reference to mediation. conciliation or arbitration.
That shows an intent not to effect that. The disputes procedure already agreed between the same two parties under the grey book applies quite clearly and expressly to the 2003 agreement. If the parties do that, is it so unreasonable to ask the Secretary of State, as our amendment seeks, that when they have done that and received some kind of answer, which might solve everything—I do not know what sort of dispute is envisaged; the Minister should spell out just what sort of dispute he envisages, at least in general terms—to say, "Surely, Secretary of State, before you impose an order. you should consult the members of the negotiating body who have used that procedure, which is already expressly envisaged in Clause 2 of the Bill"?
§ Lord Rooker
My Lords, my noble friend asked a question: yes. it would be unreasonable in the circumstances in which the Bill will operate, as I have said. This is where I start to repeat myself, for which I apologise but I must put this on the record.
At the end of the day, unusual circumstances will be involved. I repeat that we do not wish to operate the Bill—I have said that repeatedly so that my comments will not be taken out of context at any time in the future—and things are going well, to be best of my knowledge, in terms of the recent resolution to the fire services dispute. The various timetables have been agreed. This is only, as I said, a longstop. I am not denying that the provision is draconian. But the Secretary of State must be in a position to be able to draw a line under a dispute and then not be subject to challenge, but to do it in accordance with the power given to him by Parliament.
However, as I said in Grand Committee, there is another reason why the Bill does not need to provide for arbitration. That is because the arrangements already in place between the Fire Brigades Union and the employers already cover this. As my noble friend has read out, paragraphs 13 and 14 of the constitution 1167 of the National Joint Council for Local Authorities' Fire Brigades provide that if the council fails to reach agreement on any matter contained in paragraph 8 of the constitution—that is, matters relating to conditions of service—that matter will automatically be referred to ACAS for conciliation. If conciliation fails to resolve the dispute, either side of the NJC can refer the matter to ACAS for arbitration, and the other side of the NJC is required to participate.
So the mechanism already exists. As I have said before, given that the agreement reached on 13th June was signed by both sides of the National Joint Council, it follows that the arbitration procedures of the NJC constitution can be applied.
I hope that what I have just said will reassure my noble friends on Amendment No. 17. I should make it clear that in the event of the parties agreeing to seek arbitration, it would be extremely unlikely that the Secretary of State would want to exercise his powers to fix or modify conditions of service, if he considered that there was a realistic prospect that the two parties could, by seeking arbitration, resolve their differences. But it would, in theory, remain open to the Secretary of State to exercise his power at any time.
I hope that I have been able to give some clarification on the options available to the two sides—the employers and the employees—in the event of a further dispute, or a disagreement, on the interpretation of the current agreement. That is what it is about. As a result, I respectfully request my noble friend to withdraw the amendment.
§ Lord McCarthy
My Lords, I want to make two points. My second point is about how I do not think the Government have yet grasped what we are saying. On the first point—I say very gently; and I am not trying to be difficult—the Minister in this debate and in Grand Committee mentioned on several occasions the fact that we should do something—and I am not quite clear what it is we should do—because something has happened in another place. He says that in the other place, which is democratically elected, a decision has been taken and that in some vague way that especially should influence what we do.
I thought I understood what that meant we should do. There are conventions in this House—there are practically laws—about the powers of this House in relation to the other place. They apply to every Bill that is placed into this House. I do not know why it is being stressed especially, as though there was something additional about this Bill. Unless, of course, the Minister is arguing that our amendments are wrecking amendments; that we are trying in some way to wreck the Bill; and that we are introducing all kinds of delaying tactics—filibustering and so on—which are not done in other parts of the House on other Bills: something particularly heinous is being done.
1168 That is not the case. It is not our opinion that that is what we are doing. As I said in Grand Committee, and I shall say it again, the Government have everything but the argument. I do not know why they must have the argument as well. They have got the power; they have got the numbers; and they will get their Bill. No one is trying to frustrate or blow up anything. All they cannot win is the argument. I am sorry about that, but that is the way it is.
I wish to make a point about the amendment that has not been taken on board by the Minister; this is, it would not hold up or frustrate a decision on the part of the Secretary of State. That applies to the next amendment, which I shall move much more briefly, because it deals with the same matter. This amendment would not stop the decision. All that it is saying is that, as a matter of policy, the Minister ought to encourage the use of third party dispute resolution. It is no good reciting what exists already because the Minister is not saying that that applies to an order.
The Minister said that when an order was decided, it comes down instantaneously: "Boom", it goes into the contract. There is no arbitration. After the consultation process, the Secretary of State says" "I am now going to impose an order which is legally binding on all employers"—we will not debate what is legally binding because we have done so previously. But that is an order. He is not saying that the employer can then go to arbitration. All the existing facilities created before this Bill apply to the circumstances when this Bill does not apply.
Arbitration is the wrong word. We are too conventional. We are saying that, in this country—in the absence of incomes policy, I would say, but I will leave that aside—a pretence is growing, quite naturally, that employers and workers in the public sector negotiate like they used to do, as I quoted from the White Paper, as though the Government are stopping outside. They are not. They are, what I called in Committee the,ghost at the bargaining table".—[Official Report, 3/7/03; col. GC 290.]The Government are deciding what the employers can say. I do not complain about that: those are the facts of life.
However, that means that workers are engaged in industrial action—as the postmen nearly did the other day; and I am very glad that they did not—and there is no appeal against the decisions of the Government. The Government are deciding and nobody even knows what arguments they are using at the bargaining table.
In my experience, employers, both government and private sector, always consistently get one thing wrong—they exaggerate the benefits that will come from their novel proposals. I have said this before. Nobody believes me, but, as we will find out, nothing will be saved by the proposals and everything will be spent by this new method. It always is. There cannot be self-financing productivity deals in the public sector because one cannot charge at the point of distribution. It always costs more money than is saved. It is bound to. However, governments and private sectors and 1169 people half-way in and half-way out always believe that we are going to save vast sums with more intelligent ways of working. They do not save very much, but that, on the whole, is what independent assessment uncovers. I am not talking about arbitration.
§ Lord Campbell of Alloway
My Lords, with the greatest respect to the noble Lord, are we not getting a little way away from the amendment on the general policy of government?
§ Lord McCarthy
My Lords, I have probably gone on far too long, but the Government are listening, if only for two minutes. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Moved accordingly, and, on Question, Motion agreed to.
§ House adjourned at one minute before seven o'clock to Monday 6th October at half-past two o'clock, except for judicial business.