HL Deb 03 July 2003 vol 650 cc233-92GC

(First Day)

Thursday, 3rd July 2003.

The Committee met at a quarter before four of the


[The Deputy Chairman of Committees (Lord Brougham and Vaux) in the Chair.]

The Deputy Chairman of Committees (Lord Brougham and Vaux)

Before I put the Question that the Title be postponed, it may be helpful to remind your Lordships of the procedure for today's Committee stage. Except in one important respect, our proceedings will be exactly as in a normal Committee of the Whole House. We shall go through the Bill clause by clause; noble Lords will speak standing; all noble Lords are free to attend and participate; and the proceedings will he recorded in Hansard. The one difference is that the House has agreed that there shall he no Divisions in the Grand Committee. Any issue on which agreement cannot be reached should be considered again at the Report stage when, if necessary, a Division may be called. Unless, therefore, an amendment is likely to he agreed to, it should be withdrawn.

I should explain what will happen if there is a Division in the Chamber while we are sitting. The Committee will adjourn as soon as the Division Bells are rung and will resume after 10 minutes.

Title postponed.

Lord Campbell of Alloway moved Amendment No.1:

Before Clause 1, insert the following new clause—


(1) The powers conferred by section 1(1)(a), (3), (5), and (6) shall not be exercised unless—

  1. (a) collective bargaining has failed or the award of a mandatory arbitral tribunal independent of Government has been ignored or rejected, or
  2. (b) the exercise of such powers in a state of emergency has been approved by both Houses of Parliament on affirmative resolution, in which event section 1(3) shall not apply.

(2) Collective action whether primary or secondary taken at the instigation of a trade union with the intention to disrupt Fire Brigade services shall be unlawful."

The noble Lord said: It was apparent from the moment when the first Marshalled List was available in the Printed Paper Office that, since Second Reading, the tide had turned against the concept of this amendment, which restricts imposition of the conditions of service by government decree under Clause 1(1)(a). That restrictive barrier had been lifted by a tripartite consensus, of which I was given no notice and of which I was wholly unaware.

The Minister of State, Office of the Deputy Prime Minister (Lord Rooker)

Perhaps the noble Lord would allow me to make one comment, for the record. He said that the tide had turned against the amendment, but what he really means is that the tide had turned against the Bill. He would not be moving his amendment if the tide had turned against it, would he?

Lord Campbell of Alloway

I am moving the amendment against Clause 1(1)(a), notwithstanding that a tripartite consensus has emerged between my party, the Liberal Democrat Party and the Minister's party that the provision should stand unamended. That being the position—and it is a rather strange position—the erstwhile consensus on Second Reading as to the setting up of some form of "mandatory arbitral tribunal", independent of government, binding on the parties and on government, which seemed to be accepted by the House, has somehow evaporated into thin air.

The situation is that, if such be the political reality—as I believe to be at the moment—unashamed but naked, the amendment stands all but beyond the range of reasoned persuasion. Assuredly, it has not been moved as an exercise in confrontation, with a tripartite policy.

However, the merits of the argument have not been considered yet. They are worthy of objective examination, having commended themselves not only to another place, on the 20th March in the Statement that heralded the introduction of the Bill, but also in your Lordships' House at Second Reading, which my noble friend was unable to attend.

It is a dual-purpose Bill, tightly and deftly crafted. Clause 1(1)(a), with which the amendment is concerned, lies within the remit of industrial relations, employment and trade union law and is without the remit of local government law. Clause 1(1)(b), with which the amendment is not concerned, as implemented by the White Paper is not only requisite but wholly welcome—save for its control over the process of negotiation and bargaining, and subject always to the consultation that the paper envisaged, in particular, with local government. Albeit that the Bill, in this sense, is within the remit of local government, it is not a local government Bill.

[The Sitting was suspended for a Division in the House from 3.52 to 4.2 p.m.]

Lord Campbell of Alloway

That was a most fortunate interval, because my noble friend Lady Hanham assured me that she is party to no agreement such as I suggested. I am very relieved because that releases me from a direct confrontation with my own party, which is never a very attractive position to be in, although I find myself in it at times. That sort of thing happens on a complex Bill that contains intricate industrial relations terms, on which, unfortunately, through no fault of my noble friend, we could not consult or discuss. At any rate, the position is now plain. My party is not opposing this Motion.

The main question arising is whether the imposition of the conditions of service as proposed in the Bill is acceptable, not only in principle but as a means to resolve disputes and to avoid disruption in this industry in these circumstances. Whether the imposition, or the threat of imposition by decree, shall not—as I suggest it shall—inevitably engender further disruption and strife, which would be self-defeating and regrettable, as noble Lords know, there is no way in which individual members of fire brigades may be compelled to work. That was expressly acknowledged by the right honourable gentleman the Deputy Prime Minister in another place on 20th March. This fundamental question simply does not lie within the remit of a local government. Is not, such as I have put it quite shortly, the essence of the reality of the situation of which, when I was considering the reality of some political consensus, that I would have suggested that that political consensus, if it had existed, could not have taken into account the actual reality?

So one comes to the question as to how (a) and (b) interact. This is a matter, again, of industrial relations. It has nothing to do with local government. I ask: is it not inevitable and acceptable that the restructuring process, which I welcome as requisite, will give rise to a variety of local disputes on use of equipment; extra duties; provision for terrorist emergencies, and conditions of service? Is it not possible—I do not say inevitable—that these local disputes could engender another general union dispute? Is it not requisite that resolution of these disputes should be sought by the traditional process of collective bargaining in the first instance, and if such resolution may not be had by collective bargaining, that some effective means of resolution be devised to avoid disruption of this public service, such as that proposed by this amendment?

So much for the interaction between (a) and (b); an interaction which does not fall within the remit of local government but industrial relations. The purpose of the amendment is to seek your Lordships' views—I am trying to put it very simply and shall very soon conclude—on the essence of the argument rather than to produce a detailed presentation.

The purpose of the amendment is that in a state of emergency the Bill, as drafted without amendment, could apply by affirmative resolution of both Houses of Parliament. Otherwise, the provisions of the Bill would not apply to disputes as to conditions of service. When I say that the Bill would not apply, Clause 1(1)(a) is what I am concerned with. If disputes are not resolved by collective bargaining, they would be settled by mandatory arbitration independent of government and the award would be binding on the parties and on Government as a measure of last resort to avoid disruption of services. Anyone who reads the Official Report of Second Reading will see that, on the question of the setting up of some form of mandatory abitral tribunal, the noble Lord, Lord McCarthy, and I were at one. I acquit the noble Lord. Lord Wedderburn, of any over-complicity. I do not know what his views were, but we shall no doubt hear.

The other matter relevant to the amendment is that collective action, taken at the instigation of any trade union with the intention of disrupting these services and no other, be unlawful. However, the individual entitlement to withhold or withdraw labour shall of course be retained.

I want to raise only one other matter, which I think is on common ground but perhaps I should be uncertain about saying so. These particular disputes must be resolved, and disruption of the services must be avoided. The Government have devised one way of direct imposition that would work very well if it worked. It is a bit Irish to say so, but I shall try to explain why it might not. At least it has the same approach as me. My approach on the amendment is, as I have described, with the tribunal and so on. Come what may, I want to have a quick word in this context only about the series of amendments tabled by the noble Lord, Lord McCarthy, which I suspect must have been drafted by the noble Lord, Lord Wedderburn.

Lord Wedderburn of Charlton

Does the noble Lord think that it might be more appropriate to discuss forthcoming amendments when they arise or in the groups to which they have been allocated by agreement?

Lord Campbell of Alloway

I have taken the advice of the Table, and I am perfectly within my remit. I am not speaking to any particular amendment, but on a comparative effect. I have only a few more sentences to say. I am speaking about common ground where the noble Lord, Lord Rooker, and I agree, and where we disagree. We agree on the end; we do not agree on the means.

I am not going to criticise the series of amendments. I easily could and may do so in future, but that is not the purpose. The purpose is to say that the amendments afford no effective means of resolution of last resort to avoid disruption, and are dependent on the agreement of the union. Therefore, they are useless. They do not add up. They do not fulfil the common ground between the noble Lord, Lord Rooker, and myself, so I cannot accept them. I do not suppose that he will. I beg to move.

4.15 p.m.

Lord McCarthy

I was going to say nice things about the noble Lord, Lord Campbell, but he almost defeats me before I begin. I welcome the amendment because it starts us off talking about third-party dispute resolution. That is the way out of the woods. The Government pretend that their imposition, their third bite of the cherry, is independent arbitration. That is the scandal about the Bill. That is hypocrisy. There is no provision in the Bill for what the noble Lord, Lord Campbell, and I want, which is third-party dispute resolution.

Therefore, despite everything the noble Lord, Lord Campbell, said, I welcome the fact that he tables the amendment and I welcome the speech he made at Second Reading. He then said that there would be no way forward unless we tried to introduce as a specific initiative on the part of the Government, if necessary, a form of third-party dispute resolution.

There are things about the noble Lord's proposal which, if it did not go on to say the things it goes on to say, one could welcome. He is trying to restrain the scope of this monstrous Bill. He proposes that you should be able to invoke the powers in the Bill only if collective bargaining has failed or the award of a mandatory arbitral tribunal independent of Government has been ignored or rejected". I can sign up for that. There is nothing like that in the Bill—you could not get an agreement between the parties and the Secretary of State having his third bite at the cherry and saying "I don't want that". So I welcome the proposal—it is a civilised way of conducting industrial relations.

The amendment goes on to state that, the exercise of such powers in the state of emergency has been approved by both Houses of Parliament". That is a legitimate way of seeking to restrain the general, sweeping, undefined powers which the Secretary of State uses, or could use, in the Bill. I welcome that.

The amendment then goes on to state: Collective action whether primary or secondary taken at the instigation of a trade union with the intention to disrupt Fire Brigade services shall be unlawful". I do not go along with that. Nevertheless, it is a limited way of looking at a reduction in the right to strike. After all, I do not know how on earth you would ever prove it, but you would have to prove that the collective action was taken at the instigation of the trade union—presumably, a ballot would be all right; I do not know—with the intention to disrupt fire brigade services. In most industrial action of this kind, the intention is to improve terms and conditions. The intention is to achieve a settlement. The intention is to make the employer a little more reasonable. But, there we are, we could have many arguments about whether subsection (2) would apply.

Lord Campbell of Alloway

Perhaps I may clarify the issue. This used to happen in the days when I conducted such cases quite a lot. What was the intention of the union? Did it instigate it? It is a question of fact. The noble Lord is more experienced of trade unions than I. There are 101 intentions or motives, but if there is the intention to disrupt these services, that is it.

Baroness Turner of Camden

Perhaps I may say in support of my noble friend Lord McCarthy that I understand the intentions of the noble Lord, Lord Campbell of Alloway, and I commend him for the speech he made at Second Reading. That was on the side of myself and my noble friends who believe, quite rightly, that the Bill should never have been put before us.

The problem is that almost any industrial action disrupts services. When calling a dispute, one of the objectives is to disrupt the service that your members were originally providing. But, as the noble Lord, Lord Campbell of Alloway, knows, the right to strike is necessary and part of the ILO conventions. The ILO conventions, although not specific on the issue, make it clear as a corollary of the major conventions, that ultimately there should be the right to withdraw services.

I accept that paragraphs (a) and (b) are benevolently motivated, but he knows, because I have discussed it with him, that subsection (2) is not acceptable to myself and my noble friends. However, I know that the noble Lord, Lord Campbell of Alloway, speaks from a basis of considerable experience in the industrial relations field and has a great deal of knowledge of industrial relations law.

Lord McCarthy

I want to complete the few words I was saying. I am not saying that you cannot have limits on the scope of industrial action. I am saying that it cannot be done in the form in which the noble Lord advances it. I do not see why one wants to do it in particular, or because we have had a dispute in the Fire Service which has now been settled.

I do not see why one wants to attempt to introduce some alternative to the fiendish proposals which the Government put in the Bill, providing that the only way you can obtain conciliation, mediation and arbitration—you end with arbitration; you do not start with it—is by inserting into the Bill a no-strike clause; even the weak enough no-strike clause that the noble Lord suggests.

If you made a list of the workers in this country on grounds of the problems they could cause if they took industrial action, you would not start with the Fire Service. An equivalent argument could be made in relation to many other groups of workers. Once you say that you have conciliation, mediation and arbitration only if you rearrange certain circumstances and you ban industrial action, that is a precedent.

I know that the noble Lord is not for this, but I warn him that we are facing precedents. The misconstruction of the 1947 Act was a precedent. This Bill is a precedent. If you read the White Paper on the future of the Fire Service, the Government are clearly planning another series of precedents. One, two, three—it goes on. We do not want to do anything—and I am sure that the noble Lord does not—to strengthen these precedents that the Government have in mind. Therefore, I cannot support his amendment.

Lord Rooker

I shall do my best to answer the noble Lord, Lord Campbell. I congratulate him because his amendment encapsulates four or five key aspects which I can address. I shall answer them in some detail, but I do not intend to address them again. For the avoidance of doubt, I shall not make the same speech over and over again. If other amendments raise similar issues, I shall simply refer back to the points I have made.

There are some aspects to Amendment No. 1 which raise four key issues which would be worth putting on the record. The amendment requires one or more of the conditions which the noble Lord has set out to be met before the Secretary of State can exercise his power to fix or modify the conditions of service. Members of the Committee will be aware that the purpose of the power is that in the event of a further dispute, the Secretary of State can take action to remove the cause of the argument.

If it becomes necessary for him to use the powers—and we hope it will not be; it is an issue of last resort—he must be able to intervene decisively and without undue delay so that the argument does not drag on in the way it has done during the past 12 months. If there were any professionalism about, arguments would not drag on for a long period of time and we could not afford undue delay. Placing the preconditions, however well-intentioned—and I accept that they are—on the powers would make a speedy decision-making process more difficult.

Let us take collective bargaining. The first part of Amendment No. 1 would require it to have failed before the Secretary of State could exercise his powers. There is a difficulty there. The noble Lord is a lawyer, but his proposition is that it will be a matter of judgment as to whether the collective bargaining has failed. Some people could argue that collective bargaining did not fail in the recent dispute. They live in a time warp and think that constant dispute, constant chatting, constant negotiations over a 12 month period did not ultimately fail.

Therefore, it is arguable how one would define the point when collective bargaining has failed. There is no precision in that.

Lord Campbell of Alloway

The noble Lord is quite right: the drafting is defective. In practice, one of the parties to the collective bargaining will say that it has failed and apply to the tribunal, which will then decide whether it has failed. If it obviously has failed, the tribunal will get on with it; if not, they will be remitted. That should have been included in the drafting, but I tried to put it simply. The noble Lord is quite right to make the point.

Lord Rooker

With due respect, we are legislating here; we are making an Act of Parliament. I can address only the issues on the Order Paper. The Government have proposed a Bill that the other House has sent to this place. There are amendments, so I shall have to look at the words. The thrust behind the probing amendments will be slightly different—it will go wide of the mark. The noble Lord's amendment is fairly precise. I shall do my best to answer the four points.

Most reasonable people might accept that there were a number of occasions during the recent dispute where the prospect of a negotiated settlement seemed extremely remote, and where the sort of intervention that the Bill will allow would have been appropriate. If the amendment were accepted, in those circumstances it would theoretically have provided an opportunity for the employers or the union to challenge the Secretary of State's exercise of the powers on the grounds that, in their view, collective bargaining had not failed. There would be an argument about whether or not it had failed. At the very least, that could delay the Secretary of State's intervention—

Baroness Turner of Camden


Lord Rooker

I have not finished the sentence yet. The Secretary of State's intervention could be delayed, with the result that a potentially damaging industrial dispute could drag on, or that the fire-fighters would not get the pay rise in those circumstances. That is the issue ultimately.

Baroness Turner of Camden

The Minister talks about whether you know that collective bargaining has failed or not. In most collective negotiating agreements there is usually provision for failure to agree. If failure to agree is recorded, that would automatically indicate that the negotiations had come to a full stop.

Lord Rooker

I suspect, and I hope, that my noble friend will not claim that the latest dispute has been a brilliant example of professional negotiation by either the employers or the trade unions. Frankly, it was a thundering disgrace that it dragged on so long. It is to everyone's credit that we have reached a settlement that has been agreed with the timetables that I deployed at Second Reading.

Lord Wedderburn of Charlton

I am much obliged to the Minister. As I understand it, my noble friend did not ask about the recent dispute; she asked whether it is not common in collective bargaining to have a procedure where the two parties register a failure to agree. Is the Minister aware of that or not?

Lord Rooker

Yes, but I am debating a Bill about the Fire Service. I will not go down any cul-de-sacs at anybody else's invitation. This is a very specific Bill relating to one specific industry, with a specific time limit. It does not matter how many times anybody raises anything else, I will not deviate from the Bill. That is a simple issue.

I shall now discuss the second point in the amendment tabled by the noble Lord, Lord Campbell of Alloway. The next component provides an alternative basis for the exercise of power if, the award of a mandatory arbitral tribunal independent of Government has been ignored or rejected". I accept that many noble Lords raised the issue of arbitration at Second Reading. We have indicated that the Government have some difficulty with that—it is still the case. I am dealing with only the Bill rather than the future of what will happen after two years.

It would go against the purpose of the Bill; that is to say, if the two parties to the negotiation cannot agree, the democratically elected Secretary of State with responsibility for the provision of an effective Fire Service and for the public funding of the service should step in to make a settlement. A difficulty arises here. It is true that it requires a difficult decision both by my right honourable friend and the others involved. We do not think that those decisions should be handed over to a third party.

The issues which caused most difficulty in the fire dispute were those such as, for example, how the Fire Service should move from the prescribed national fire cover standards to a locally risk-based approach to fire cover; and the implications for staff, especially as regards the shift patterns. It is difficult to see how those would have been arbitral issues in the recent dispute because they were much wider than, let us say, 4 per cent, 10 per cent or 11 per cent.

Ultimately, you cannot arbitrate about policy questions such as the right basis for fire cover—

4.30 p.m.

Lord Wedderburn of Charlton

Of course you can.

Lord Rooker

My noble friend can disagree and he can make his own speech, but I am making mine. I am making the point that it is more difficult because it is not so precise to make an arbitral award on a policy issue as it is on a pay rise or a timetable for a pay rise.

The Bill requires the Secretary of State—and this tends not to be mentioned—to consult the negotiating body before he makes any order fixing or modifying conditions of service. So this is not something he does on a hunch—waking up one morning and doing it without telling anyone. He will be required to act as a reasonable Minister and to take the views of that body into account before finalising his proposals. As I have made abundantly clear, John Prescott would also consult his statutory advisers, who are the Central Fire Brigades Advisory Council. So the Secretary of State would be fully informed of the views of the stakeholders, the employers, the union and the central body.

I turn to the third element of the new clause; that relating to affirmative resolution during a state of emergency. The noble Lord suggested that if there is no failure of collective bargaining or a tribunal, but there is a state of emergency, both Houses of Parliament must agree by affirmative resolution that the power should be exercised.

In that event, the Secretary of State would not have to consult the negotiating body on his proposals, as would normally be the case under Clause 1(3). The situation is therefore separate. Amendment No. 1 is capable of more than one interpretation. First, it could mean that the Secretary of State could not use the power at all unless a state of emergency existed, and unless Parliament at first agreed to the use of the power. Alternatively, it could be interpreted as meaning that Parliament would have to agree the precise terms of the Secretary of State's order, fixing or modifying the conditions of service. But neither of those seem appropriate or workable.

We do not of course want to have a state of emergency existing in any event. If there were a state of emergency—and we can only guess the kind of reasons that would bring that about; a chemical or biological attack, say—we know that the fire fighters of this country and all the emergency services would act responsibly. I am absolutely in no doubt about that whatever, irrespective of ongoing disputes or arguments. We know that that would be the case because we have examples from minor disputes when people have left picket lines.

The noble Lord, Lord Campbell, indicated his belief that such powers should be exercised only during a state of emergency. During the Second Reading debate, he referred to many aspects of the emergency legislation passed during the Second World War. We have a bit of a problem here. We cannot reach the point where we have to go to the House of Commons and to this place and say, "If a dispute flares up again, we cannot sort it out because there is not a war on". We have a problem about that part of the amendment relating to the state of emergency.

That brings me to the other aspect. If the Bill is activated, we are in serious trouble. We do not want to use the Bill, as I have made repeatedly clear. Both Houses, as the amendment requires, would have to approve the Secretary of State's action by affirmative resolution. The powers in the Fire Services Act 1947, which are similar to the powers in Clause 1(1)(a), were, when first enacted subject to the powers of the negative resolution procedure, as are the current powers to set the pay of a number of other public sector groups, including the police and teachers. Nor do they require for there to be a state of emergency in existence before they are exercised.

It would therefore be odd if the power were subject to the affirmative resolution during the state of emergency. We all know how long that would take and it could be done only when Parliament was sitting. From my recollection, Parliament sits on average 34 weeks per year. This House sits rather more weeks than another place, but it is not far away from that. So, there are 20 weeks per year when Parliament is not sitting. Even with the noble Lord's suggestion that the consultation requirement in Clause 1(3) would not be needed in these circumstances, this would still mean a delay in the exercise of the power.

The final part of the amendment tabled by the noble Lord, Lord Campbell of Alloway, would make it unlawful to take collective action, whether primary or secondary, at the instigation of a trade union with the intention of disrupting fire brigade services.

So, the position has been made clear. I do not have to answer, and I shall not, any argument about the right to strike. It has been made crystal clear to everyone in this House and another place, outside this House and in the White Paper, that we have no intention in this Bill, or the Bill which will result from the White Paper, of removing the right to strike. So, that should be the end of that, and that has been accepted. As far as I know, that is not in dispute and no one has accused the Government of lying or having a hidden agenda.

Therefore, in those general terms—there are some important points in the noble Lord's amendment—I hope he will see that I cannot accept it. However, the points he raised have given me an opportunity to put some issues on the record, which I shall refer back to later, to avoid repetition.

Lord Wedderburn of Charlton

When I looked at this amendment I did not intend to speak on it, but in view of what the noble Lord, Lord Campbell of Alloway, said about other amendments I have drafted to which I am not now speaking, I think perhaps I should.

I am against this amendment, but the reason I am speaking is to give slightly different reasons from those given by the Minister and, indeed, slightly different from those given by my noble friend Lord McCarthy. I hope that these reasons will be considered when we come back to the matter, if we do, on Report. The noble Lord, Lord Campbell, went into his amendment and it was answered by the Minister carefully and in detail. Therefore, I refer to one or two Committee point details as well as more general matters.

The first point of some importance is that both the noble Lord, Lord Campbell of Alloway, and some of my noble friends seem sometimes to have read the amendment as though the "or" at the end of paragraph (a) was an "and". On the contrary, it is a disjunctive presentation. Either, collective bargaining has failed or the award of a mandatory arbitral tribunal … has been ignored or rejected, or", Parliament has, I suppose one might say in summary, declared an emergency.

The first of those disjunctive propositions is quite meaningful and has the advantage, as my noble friend Lord McCarthy, said, of introducing the notion at least of mandatory arbitration, which is the subject of some of the later amendments standing in my name and that of my noble friends. I therefore take the opportunity to say that this amendment has nothing in common whatever with them in my view, but we shall deal with that when we come to them rather than now.

Lord Campbell of Alloway

I agree.

Lord Wedderburn of Charlton

The noble Lord, Lord Campbell, says that he agrees. I misunderstood him; I apologise. We shall come to our amendments when we come to them. I hope that no one will think that anything said in answer to any of this amendment has any relevance whatever to the later amendments.

Secondly, the ban on the right to strike in subsection (2) of Amendment No. 1 is absolute, given the conditions it requires. It has to be at the instigation of a trade union. I do not think that that is legally difficult. That is fairly clear, in my view. On the facts, you are told whether it is instigated by the union or not. It has to be with the intention of disrupting fire brigade services. That is much more questionable. That is not just a question of fact; that is also a mixed question of fact and legal inference.

The noble Lord who moved the amendment—I have known him for a very long time; I calculate that it is something like 40 years—must surely remember that, in a series of cases, the question has arisen under the law as it is. In a number of cases, I may summarise the proposition properly as follows: that the intention of the industrial action was to gain improved conditions for the workers represented by the union that instigated it, and not necessarily to interfere with the services available for customers or third parties. Indeed, as was pointed out in one of them, alternative arrangements could well be made despite any disruption. That is a further question.

I want to say something about the legal issues before we come to them, and here I anticipate them a little to save time. When one makes a proposition of law, one might think that it might be proper to give the sources on which one relies. There is a lot of law in the Bill, and a lot of law is left out of the Bill. I do not think that that is by design. I cannot tell—I was not there when it was drafted—but I think that a lot of law was left out by mistake.

Having said that, by way of interpolation, I shall quote the sources on which I rely, relating to what is regarded as the question of legal inference and rules to apply to the facts in regard to the intention of those who instigate industrial action. I rely on the case of Falconer v ASLEF in 1986, from Industrial Relations Law Reports 331, and on the judgments—both those in the majority, and the minority judgment of Lord Justice Peter Gibson—in the case of Millar v Bassey in 1994. I do not have the precise reference to the law reports and the entertainment media law reports with me.

I am sorry if Ministers find that excessive, but I ask them, when they rely on a legal proposition, equally to do us the courtesy of citing the source on which they rely. That is a normal convention in matters of law. I do so quite deliberately on this occasion, and I shall do so in future. I shall cite the cases and the sections and, where necessary, read them out when we come to Section 19 of the Fire Services Act and the Local Government Bill that is going through the House at the moment. It may be convenient not only to talk about them in some vague way, but to put them on the record. That is only reasonable.

The noble Lord, Lord Campbell of Alloway, will also surely know of the old convention, as I shall call it, that courts often apply; namely that a man—a person, in these modern times—is taken to intend the natural and probable consequences of his action. Does that maxim apply to the noble Lord's amendment? If so, it would go towards a meaning rather different from that applied in the cases that I have just cited. Subsection (2) of the amendment contains no mention of arbitration. It is that that makes it hopelessly at variance with the conventions of the International Labour Organisation.

I shall follow my rules. I do not just refer to the cases airily. I refer to convention 87 and the report of the freedom of association committee, summarised in the International Labour Organisation report on the committee of experts. The last one that I had was 1993's, but I apprehend that it is still accurate.

The committee reported and the governing body accepted that: In the opinion of the Committee, the principle whereby the right to strike may be limited or prohibited in the public service or in essential services, whether public, semi-public or private, would become meaningless if the legislation defined the public service or essential services too broadly". That goes very much to any notion of emergency, but the notion of emergency does not even appear in subsection (2) of the amendment. The committee went on to say that, if strikes are restricted or prohibited in the public service or in essential services, appropriate guarantees must be afforded to protect workers who are thus denied one of the essential means of defending their occupational interests. Restrictions should be offset by adequate impartial and speedy conciliation and arbitration procedures, in which the parties concerned can take part at every stage and in which the awards should in all cases be binding on both parties". That is a very important quotation from ILO literature. It is well known as a fundamental proposition, laid down well before 1993, and it has been a staple diet in ILO discussion ever since. It is also very relevant to the Government's response. Unless I misheard—and I apologise if I read Hansard and find that I am wrong—I do not believe that the Minister referred to the ILO. Some of the amendments that have been tabled refer to the ILO, and we intend to rely not only on that quotation but on a large number of other ILO documents, which I hope that the Home Office has the facilities to advise about. The point about failure to agree was raised by my noble friend Lady Turner. That is a point that will be relevant generally.

I conclude with a repetition—and I believe that it is my only repetition. I hope that nothing said about the amendment is regarded as in any way relevant to what is said about future amendments that have absolutely nothing in common with it. I shall be very glad if the Government encourage us to oppose Amendment No. 1.

Lord Campbell of Alloway

I wish to make one comment for the sake of clarification and, perhaps, to save a little time. The noble Lord, Lord Rooker, or any other noble Lord, may correct me if I am wrong. The Minister and I are concerned with a wholly exceptional situation in wholly exceptional circumstances, to provide a new appropriate regime to resolve disputes one way or another in this particular industry, and to avoid disruption. We differ as to the means, but we do not differ as to the object.

That being so, one must surely watch out for an academic approach of case law related to all sorts of other situations. I am not saying that the noble Lord, Lord Wedderburn, cannot refer to all the cases in Christendom—or in Islam, if there are any. However, with respect o the noble Lord, that seems wide of the target on which we should be focusing our opinion.

In the circumstances, I shall take the opportunity to read the contributions, particularly, of the noble Lord, Lord Rooker, the noble Baroness, Lady Turner of Camden, and the noble Lords, Lord Wedderburn and Lord McCarthy, and consider in what form I should return to the matter on Report. I may return with an amendment to Clause 1(1)(a), when I have considered what has been said today. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

4.45 p.m.

Baroness Hamwee moved Amendment No. 2:

Page 1, line 6, at end insert— ( ) The Secretary of State may make an order under subsection (1) only after any current offer to fire brigade members has been the subject of a secret postal ballot of such members within the previous three months, unless the order is to require fire brigade members to be given the opportunity to take part in a secret postal ballot on terms And conditions organised by an appropriate independent body.

The noble Baroness said: Broadly, my amendment takes the same direction as Amendment No. 4, tabled by the noble Baroness, Lady Hanham. I readily confess that hers has the virtue of far plainer and clearer language than mine, which is a little convoluted, but mine does not suggest that the Secretary of State should be the person who conducts a ballot. I see the logic of her proposal, but I feel that ballots would be better kept within the fire-fighters' own organisations.

The real importance of both the amendments is the secret ballot. One member one vote cast in secret is the cornerstone of good industrial relations, if relations have broken down to such an extent that there is a dispute. We are all aware of concerns about the effects of the FBU not having balloted on particular offers from employers, although the union conducted a secret ballot before starting strike action.

In the Commons, the Minister's objections to similar amendments seemed to be that there was no mechanism for a secret ballot of all fire brigade members, because they were not all members of the FBU. There were four or five unions involved that were not party to the negotiating body. The Minister also said that similar amendments would, take time without getting anywhere".—[Official Report. Commons, 3/6/03; col. 76.] He said that he was not clear what the Secretary of State would do with the results of a ballot. I find that a rather sad comment, as it seems to imply—although I am sure that it was not meant to—that discussion and negotiation were rejected.

The amendment refers to the provisions of Clause 1(3), which require the Secretary of State to submit proposals to a negotiating body, if there is one. It is designed to enable the Secretary of State, if he imposes conditions, to do so knowing the level of support from the fire-fighters.

These are not easy amendments to draft. Perhaps because the Bill is so short, I found it hard to amend, not because there are no issues but because it was difficult to find the right language. If my amendment has technical problems, I hope that the Government can propose some other wording. The role of the secret ballot is hugely important, and we believe that it should be recognised within the legislation. As I said on Second Reading, I find this legislation objectionable—but there we go. I beg to move.

Baroness Hanham

My amendment is coupled with Amendment No. 2, tabled by the noble Baroness. First, however, I must issue an apology to the Committee. It has been mentioned already that I was unable to attend the Second Reading. However, I waited until 10.30 p.m. on the night that the debate was due to take part. Unfortunately, on the day on which the debate was finally held, I could not break my prior engagement. Of course, I have read the Second Reading debate in Hansard.

As the noble Baroness, Lady Hamwee, said, we are more or less ad idem with the amendments. Mine, unlike hers, would introduce an obligation for the Secretary of State to conduct a postal ballot on any matters that he sought to impose on firemen under the Bill, taking in Clause 1(1)(a) and (1)(b). It extends somewhat the amendment put forward by the noble Baroness, in that it would require a fire authority to supply any information to the Secretary of State, or by definition to any organisation acting on his behalf, such as an independent organisation employed to carry out the ballot, as long as it was in his name. I refer to information that would enable the ballot to be carried out—for example, the details of employees, which would enable them to be sent ballot papers and information on the proposals.

As the noble Baroness said, it could be possible that a ballot would be organised by the trade union on the Secretary of State's behalf, in which case the union would probably have all the information required. However, there might be a situation where that was not a desirable or practical solution, and the amendment would provide an alternative. We would hope that, since negotiations are now taking place following the fire-fighters' decision to accept the offer on the table, that would not be necessary. Indeed, we will come at a later stage to a discussion on the rationale behind the Bill continuing at all. I have tabled the amendment in the spirit of scrutinising the Bill.

Lord Campbell of Alloway

I have tried to explain to my noble friend Lady Hanham and the noble Baroness, Lady Hamwee, the difficulty with their amendments. Amendment No. 3 says, by virtue of subsection (1)(a)". Amendment No. 4 refers to, an order under subsection (1)", and in, relation to subsection (1A) above". My problem is that I cannot support the amendments, because they conflict with Amendment No. 1. If I have the opportunity to reconsider the matter and to carry on Report some form of amendment of Amendment No. 1 into an amendment of Clause 1(1)(a), I should be able to support the amendments. In substance, of course, I support them.

Lord McCarthy

I want to ask a few questions. Amendment No. 4 is simpler than Amendment No. 2 because the Secretary of State does it all. On Amendment No. 2, we do not know who does it all, or who refuses to do it. It might be left to the union, who might refuse to do it. Would that mean that the Secretary of State was in a better or worse position to produce his order?

Amendment No. 4 is simpler, but we are still not out of the woods. What do we put on the ballot paper? Do we put, "Would you like to strike?"—and if the firefighters say they would, does that mean that the Secretary of State cannot issue his order? Do we put, "Do you accept the offer now on the table from the Secretary of State?"—and if they say, "No we don't", it means that he cannot introduce his order? They may not like his order or his proposals. On the other hand, if they accepted the proposals made by the Secretary of State, there could not be a strike and he could produce his order. But then if they accepted the proposals, he would not need an order, would he? I am not sure what the relationship is between having the ballot, the words on the ballot paper and the consequences that follow from whatever result we get.

Baroness Hanham

The noble Lord has taken me one step further than the amendment goes. I was not anticipating that I would have to write the ballot question. The whole purpose of the Bill is related to a mandatory requirement by the Secretary of State to put forward a question for an order that he is about to introduce. The Bill says that the Secretary of State will be able to say that this or that is going to happen. My amendment, and the one tabled by the noble Baroness, Lady Hamwee, say that whatever matter the Secretary of State wanted to introduce should be the subject of a ballot. How the words were put together and what question was asked would relate solely to what the matter was, and the implication behind the Secretary of State's intention.

As far as it goes, the purpose behind my amendment is clear. If it was necessary for there to be a wording of the ballot paper, it would have to be a matter for advice, either from the Law Officers in Parliament or perhaps from the Electoral Commission.

Lord Wedderburn of Charlton

I am most grateful for the explanation given by the noble Baroness, but will she inform us further on the purpose of a provision to be made by virtue of subsection (1)(a) under a, power to make provision about conditions of service relating to … membership of trade unions by fire brigade members"? What is the purpose of that? What kind of order would she envisage in that regard?

Baroness Hanham

Perhaps I can deal with that question when we get to Amendment No. 3.

Lord Wedderburn of Charlton

Oh, I deeply apologise. I am so sorry. It is Amendment No. 4 that we are discussing.

[The Sitting was suspended for a Division in the House from 5.1 to 5.11 p.m.]

Baroness Turner of Camden

I want to put a question to the noble Baroness, Lady Hamwee, who tabled the amendment about ballots. It is really a bit arbitrary to suggest that legislation should state that there be a secret ballot of such members within a three-month period. There may be all sorts of ways in which negotiations are quite legitimately conducted. What very often happens is that a negotiating team will report back to the executive, and the executive may then consult a delegate conference. There may then be a reference from the leadership to the membership as a whole, who will recommend rejection or whatever. To specify that there has to be a postal ballot within that time limit is a bit arbitrary, and may interfere with quite legitimate national joint council arrangements, which I gather are being considered at the moment anyhow.

Baroness Hamwee

I how to the noble Baroness's practical experience in the matter. Three months may not be the right period but, unless one puts some period in, the whole thing seems so uncertain that one could not apply such a process at all. The amendment is an attempt to make it work.

Lord Rooker

Amendments Nos. 2 and 4 are both generally on the same issue. I know that they are on secret ballots, but basically they are designed to put a hurdle in the way of the Secretary of State making any orders. I understand that that is their prime purpose. There is no argument about secret ballots not being central to our approach to industrial relations; they indeed are. The current situation is that only industrial action that has the support of such a ballot is protected under the legislation.

Of course, the Fire Brigades Union held a secret ballot before it embarked on the recent dispute. That is perfectly lawful, but what they balloted about was not whether to accept a particular offer. That was not the issue, which makes things more difficult. The issue is whether to take industrial action—a strike or other action that might be held to be short of a strike—which is perfectly okay.

We have no plans to legislate to require the Fire Brigades Union to hold ballots on offers made to it by the employers. That would be quite wrong. Why single out the FBU for that? That is all that this Bill is about. There is no logic in that at all.

As I say, these amendments are not, however, about secret ballots as a reasonable, or the best, mechanism for establishing opinion on a dispute. Their effect is simply to set up hurdles over which the Secretary of State must jump.

Our judgment is that, while we trust and hope that we shall never have to use the powers in the Bill, they are necessary so that all parties understand without any doubt at all that, in the event of a further dispute, the Government are prepared and, indeed, will take action. That being so, if we get into a situation where we believe there is no alternative but to use the powers, making it more difficult to do so would defeat our object. So I must resist these amendments.

Amendment No. 2 would mean that the Secretary of State could make an order only if a secret ballot of all fire brigade members about an employers' offer had been held within the previous three months. One problem with this is that there does not exist a mechanism for a secret ballot of all fire brigade members. That issue was raised in the other place.

The Fire Brigades Union could ballot its members at any time but not those who are members of other unions or of none. The other unions could ballot their members but they are not currently party to the negotiations or part of the negotiating body, so strictly speaking they could not have an offer made to them by the employers. So, it is difficult to see how this condition could be met.

There is no way of fulfilling this requirement. The amendment provides an alternative: that the Secretary of State may himself make an order under the Bill requiring a secret postal ballot of all fire brigade members about an existing offer organised independently.

Similarly, Amendment No. 4 suggests that the Secretary of State should conduct a postal ballot about his own proposals to make an order, rather than about an offer by the employers. The difficulty with that is that it would take time without getting anywhere. Under the normal process of negotiation, employers and unions discuss. They reach an agreement which the negotiators think acceptable and put to their members for endorsement, perhaps by secret ballot, perhaps not. That could be done at delegate conferences, as the noble Baroness, Lady Turner, said.

The powers in the Bill are designed to deal with the situation where this normal process has broken down. This Bill is not designed for ordinary situations. It is designed for the situation where the whole process has broken down. We have made that abundantly clear; otherwise, we would be legislating for normal activities, and we are not.

Anyway, it is not clear what we would do with the results of a ballot. I am not sure how we would conduct a ballot. When I was at the Home Office I discovered that we did not even have the addresses of police stations. Therefore, we might have difficulty holding a ballot for the Fire Service and getting the addresses of members. We probably do not have the addresses of the fire stations. I know that the example I gave of the police stations sounds barmy but police authorities and other such bodies are sometimes reluctant to divulge that information. We could consult telephone directories but they are not always up-to-date. Let us not assume that the Government have all the information necessary to conduct a ballot. I do not believe that that is the case.

If a ballot were held and an offer rejected, we would be no further along. Not making an order might deprive fire-fighters of a pay rise. The amendments could in many circumstances prevent employees getting a pay rise. There are difficulties in that regard.

If a vote went against Ministers' proposals, that would not mean that the proposals were necessarily wrong. It all comes back to Ministers having to make their own judgments about these matters. It would be an issue that you could not really negotiate. We are discussing an extra hurdle designed to avoid the operation of the Bill. If you tidied up the defects in the amendments, you would then be left with a hurdle for the Secretary of State. Therefore, I ask the noble Baroness to withdraw the amendment.

5.15 p.m.

Lord McCarthy

Before the noble Lord sits down, can I try to get some clarity about the point that he made several times; namely, that the amendments would prevent fire persons from getting a wage increase? Presumably they would only come in, and only be required, where there was a failure to agree; in other words, when the workers in the Fire Service said, "We are not satisfied. We want to improve on it". They would not want to take the money because they had not agreed to take the money. There would be a failure to agree.

Lord Rooker

There was a failure to agree before and that is why fire brigade members will get a large lump sum. That money has been on offer since November last year.

Baroness Hanham

We are quickly coming up against some of the problems with the Bill. As I understand the terms of the Bill, it becomes of any relevance at all only if the current negotiations fall flat on their face and the Secretary of State makes a decision that he will either impose a pay settlement and/or impose conditions. If that is the case, we say that if he is going to impose something, it would be helpful for him as well as for everyone else if what he intended to impose was put to a postal ballot. There are some extremely difficult fire-fighters and there are some rather less difficult fire-fighters. It might be that he could end up with an agreement from a secret ballot, which would be helpful. That was the burden of the amendments.

The point about the Office of the Deputy Prime Minister or others not knowing the address of the fire stations is covered by the second part of my amendment which states that fire authorities would have to provide the relevant information. Someone must be paying those guys and in that case they have the addresses, or at least details of the relevant bank accounts. Therefore, you can now get the information that you require in order to carry out a secret ballot on what the Secretary of State will impose.

Baroness Hamwee

Stopping the operation of the Bill is not something that we are going to achieve today. I have made no secret of my opposition to it but the amendment, so far as I am concerned, seeks to find a way of enabling fire-fighters to express their own views through a secret mechanism which is less susceptible to the problems that one is aware of when votes are cast in a public fashion. I am aware of the difficulties of information being withheld. It is precisely because of that attitude and those difficulties that I have tried to find the solution I am discussing. I accept that there are technical problems with the measure. I doubt whether I have the technical ability to draft the half dozen pages that might be required to make the measure work. However, I am sad that the Government are not acknowledging the issue at the root of the amendment. The Minister asked why the FBU should be singled out when that is what the Bill is about. That is precisely my point. In a sense that question answers itself.

Finally, the noble Lord, Lord Campbell of Alloway, suggested that he might wish to review his attitude to the measure on Report. I hope that the Bill never reaches Report stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Hanham moved Amendment No. 3:

Page 1, line 6, at end insert— ( ) The provision that may be made by virtue of subsection (1)(a) includes the power to make provision about conditions of service relating to—

  1. (a) membership of trade unions by fire brigade members; and
  2. (b) disciplinary offences by fire brigades members."

The noble Baroness said: I recognise immediately that I am tramping slightly over the ground covered by my noble friend Lord Campbell of Alloway but I hope that the Minister is not so wedded to the notes to which he spoke previously that he will not consider what I have to say.

There are significant flaws in this small Bill, but one of the most significant is that it is, in effect, a completely toothless tiger. One hesitates to get too involved in its minutiae on the basis that it is to be profoundly hoped—as my noble friend Lady Hamwee said—that it will never be required. However, if it became necessary to implement it, the Secretary of State could leap up and down and impose whatever he wished, but the fire-fighters could simply reject what he said by going back on strike, thus flying in the face of this Bill and any other imposed settlement. This amendment was put forward in the other place by my honourable friend Philip Hammond, whom I blame for its content. It may be defective, as has been already suggested. I might not even be able to answer in detail the question that I was asked. I accept that its architecture is somewhat tortuous, but its effect would be to impose a strike ban, one effectively imposed by the Secretary of State as a result of his own orders being rejected.

This Bill continues on its way despite the fact that discussions are taking place at present and despite the fact of the union having accepted the final proposals, and returned to negotiations. It can, therefore, only be a belt and braces matter, and if that is what it is, and if it were to be needed, then it would have to be effective. Our amendment would provide the teeth to prevent a further strike taking place. It would give the Secretary of State the support he would need to implement a settlement and it could apply for just the duration of this legislation. It is unfortunate that when asked what he would do if the fire-fighters refused to accept a settlement imposed under this Bill, the Deputy Prime Minister gave a somewhat confused and woolly reply. That may be understandable, as the powers he is taking simply do not allow for defiance. I beg to move.

Lord McCarthy

Could the noble Baroness tell us, if that is what the provision is about, why it does not say so? It does not say that before making an order the Secretary of State should conduct a postal ballot. We are discussing Amendment No. 3, not the others, we got rid of them. Amendment No. 3 states: The provision that may be made … includes the power to make provision about conditions of service relating to—

  1. (a) membership of trade unions—
not ballots, not strikes— by fire brigade members; and
  1. (b) disciplinary offences by fire brigade members".
What has that got to do with ballots? If that is what she wanted, she has done it in Amendment No. 4.

Baroness Hanham

I accept that the amendment may not be absolutely the ideal way of tackling the matter. The amendment is designed to give the Deputy Prime Minister the power, but not the obligation, to enforce his orders by introducing through the disciplinary code a strike ballot and, if necessary, to regulate membership of trades unions as regards fire brigade members. Its purpose is to ensure that there would, if necessary, be the power to restrict strike action.

Lord Campbell of Alloway

The more I have listened to the debate, the more confused I am becoming. On the face of it, it all looks rather good but what practical purpose does it serve? This is what I am beginning to wonder. One has to look at the situation. Collective bargaining has broken down, a dispute is going on, it has got to be a fairly serious situation and they want to avoid disruption of the services. The Secretary of State is minded to make an order either under the Bill as it stands or even on a Bill as amended by my amendment, or the likes of it, because all negotiations have broken down. Is it not at that stage too late to have a postal ballot? How does it fit into the scenario? Perhaps I have got it wrong but I do not see how it is going to work.

5.30 p.m.

Baroness Hanham

I am trying to tell the Minister how it is going to work, but I thought that we had passed postal ballots. My noble friend is correct. We are at the end of a very, very difficult situation if any part of this Bill has to be introduced. I am bound to say that if that were the case, we would be in territory that is probably unique. But the Bill is designed to serve a purpose. As I said earlier, the postal ballot would seek to ensure that there was at least a view taken by the fire-Fighters on what the Secretary of State was about to impose. That could be accepted if there were a secret ballot, and that would be the end of it before the Deputy Prime Minister imposed what he wanted to impose.

Amendment No. 3 seeks to deny the right to strike following that secret ballot or at any time during the process. If strikes were to occur at that stage they would cause further difficulty as regards sorting out the problem. That is the basis of the amendment.

Lord Rooker

I hope that I can help the noble Baroness. The Secretary of State does not want these powers so I shall not go into any detail. He does not want the powers that would be conferred by Amendment No. 3 as it would not be an appropriate way to deal with the issue. So far as the second part of the amendment is concerned, the Secretary of State already has the powers to make regulations about discipline. The White Paper published last week or the week before explained that we intend to abolish the current military-style regulations and replace them with a new framework based on ACAS best practice, so we do not need another power here. We do not want these powers and I do not see why I should spend a lot of time on them, bearing in mind that this issue was landed on the noble Baroness by her honourable friend in the other place. As I say, we do not want the powers. They will not help. Therefore, I invite the noble Baroness to withdraw the amendment.

Baroness Hanham

Does the Minister accept that we have only recently had the White Paper but we are being invited to consider it with the possibility of legislation resulting from it? What we are talking about is precisely and only this Bill, not the White Paper, not the legislation that will come from that and not the Local Government Bill. We are discussing this legislation. I hear what the Minister says.

Lord Wedderburn of Charlton

Will the noble Baroness give way?

Baroness Hanham

I shall if the noble Lord does not ask me technical questions.

Lord Wedderburn of Charlton

I am much obliged to the noble Baroness. I am most grateful. Before she finally concludes, I think I am right that she is now on Amendment No. 3. I did not want to make the same mistake twice. I apologise very much to her for anticipating questions that belong to other amendments. But as we have seen, purely in parenthesis, Amendments Nos. 3 and 4 hang very much together, from what the noble Baroness said. Since she says that we are to understand Amendments Nos. 3 and 4 together as implying a power to ban strikes, would she agree with the proposition put forward that, the right to strike is one of the essential means through which workers and their organisations may promote and defend their economic and social interests"? I quote that because it is the central thesis of the International Labour Organisation based on convention 87. I take the opportunity, therefore, of asking whether it is the official policy of the Opposition not to abide by that proposition.

Baroness Hanham

I find myself in the same difficulty as everyone here. What we are dealing with is a piece of legislation which has a very specific purpose. As far as I am concerned we can go on discussing trades union laws and international laws and accepted laws until we drop off our perches. Our discussion relates only to this Bill. As far as I can see, this Bill is isolated legislation in the midst of all the morass of everything else. The purpose behind my amendment is to try to secure something that would make the Bill implementable. I do not want the Bill. I am not quite sure why I am bothering to do this, but the Deputy Prime Minister thinks he is going to be able to do things by order under this Bill. It does not make a row of beans' difference—he can say what he likes. He can impose what he likes and if the Fire Brigades Union decides not to sign up to that we could very well be back with the same series of strikes as we have seen over the past six months. The purpose behind the amendment is to give some teeth, if that were ever required, to what the Deputy Prime Minister had to do. I am bound to say, as I have said before, that I wish we did not have this legislation in front of us but that is what we are dealing with and that is the purpose of the amendment.

Lord Wedderburn of Charlton

I am most grateful to the noble Baroness. It is partly because I agree with her in one respect that this Bill should not be pursued—as has already been said by those who speak from the Liberal Democrat Benches—that I want further clarification of the position of the Official Opposition. In the context of this Bill—I am sorry I did not put that phrase in but I naturally felt I was implying it—is it the policy of the Conservative Opposition that the proposition which I quoted from the ILO, which is a central thesis, does not apply?

Baroness Hanham

We take it in the context of other emergency service workers who do not have the automatic right to strike—police officers, for one. I refer to the difficulties that have arisen over the past six months when the Official Opposition pushed the Government very hard to at least determine whether we had powers to deal with the strikes. I hope that the noble Lord will listen to my reply and then he will not have to ask the same question again.

The Minister said—I agree with him—that where there had been problems during the strikes, the fire-fighters had turned out and that was practical, sensible and quite proper. However, it cannot be guaranteed that if the Bill is implemented the same spirit of enthusiasm and co-operation would exist. Under those circumstances the Deputy Prime Minister might require the extra strengthening of this potential strike ban. The noble Lord may ask me further questions but I do not think that I can take the matter further. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 4 not moved.]

Lord Wedderburn of Charlton moved Amendment No. 5:

Page 1, line 16, at end insert— (2A) Before the Secretary of State makes directions by virtue of section 1(1)(b) which affect local needs or any other matters within the terms of section 19 of the Fire Services Act 1947 (c. 41) (fire brigade establishments to be determined in accordance with approved schemes) as amended by section 7 of the Fire Services Act 1959 (c. 44) (establishment schemes), he shall engage in consultation with local authorities and other persons who would legitimately have expected to be consulted—

  1. (a) if he had been exercising powers under section 19 of the Fire Services Act 1947 before the amendment of part of that section in section 120 of the Local Government Act 2003; or
  2. (b) in a manner parallel to the terms of guidance on consultation issued for and advice on "best practice" given to fire authorities in respect of Integrated Risk Management Planning, or in the absence of such final guidance the current draft thereof."

The noble Lord said: I should explain this about Amendment No. 5. It is very much a probing amendment. I found myself in enormous difficulty with my noble friends in trying to draft it. Part of the reason for that is that an aspect of this Bill which has never been discussed, to my knowledge in either House, is the interface between what is proposed in this Bill and proposals in the Local Government Bill that have recently been debated in another Grand Committee. Perhaps it is an exception to the proposition I have just put that the Government have made clear that they intend to repeal at any rate the major part of Section 19 of the Fire Services Act 1947, to which my amendment refers.

What I am asking for in this amendment, which may well need a different draft—I was not sure how to refer to an Act that will become an Act after discussion on the Bill which is still going on—is, just what is the interrelationship between this Bill and what is proposed to be the Local Government Act 2003? In moving the amendment I in no way depart from my suggestion that this Bill should not be proceeded with, but it is not relevant to this amendment obviously.

The Local Government Bill debate was before your Lordships' Grand Committee on 24th June. It was what was said there that set me off seeking to understand what would be done under that Bill and this. The clause that is relevant, especially under the Local Government Bill as currently proposed, is Clause 120 and it reads: The following provisions cease to have effect—

  1. (a) section 19(3) to (8) of the Fire Services Act 1947
  2. (b) paragraph (a) of section 7(2) of the Fire Services Act 1959",
which I add was the subsection that amended Section 19 of the Fire Services Act 1947.

Both under the 1947 Act and under current proposals the authorities that were relevant to the various matters under, in the first case, the law as it is before the Local Government Bill takes effect, and the law as it will be—at any rate in regard to guidance, as I understand it—after that Bill and this Bill, if it is passed, come into effect, will require a very large amount of consultation. What first of all strikes one when one examines these various statutory and what are sometimes called "soft law" codes is that the amount of consultation required under them in the past and in the future is strikingly different to the amount of consultation which the Secretary of State needs to engage in under this Bill.

I must say at once that in saying that I am taking full account of what the Secretary of State has to do under Clause 1(3) where, to put it briefly, he must consult the national joint council when he is dealing with conditions of service in his proposals. And I am taking full account of Clause 1(4) where he is to, consult such persons who—

  1. (a) are, in his opinion, likely to be affected by the proposed direction, or
  2. (b) represent persons who are, in his opinion, likely to be so affected"
where the order which he proposes is to take effect under Clause 1(1)(b) of the current Bill. Neither of those sections go anywhere near as far as what I understand to have been the past law and future rules on consultation.

I appreciate that there may be circumstances in which the Secretary of State would be in some difficulty in fulfilling consultation of that extent. Of course, if there is an emergency of such proportions that consultation with the persons likely to be affected is impossible, that is a material circumstance. But it is a material circumstance which it is perfectly possible to draft. If that is what is wanted, it should appear in the Bill. Here, perhaps I may make a general point since we are saying what we will not—I will not—repeat in the future. There is much which is omitted from the Bill which is remediable only by way of amendment. It is not remediable in many cases by way of a Pepper v Hart assurance from the Government.

The Government may intend to use certain powers only in certain ways and in certain circumstances. If they do, there is no reason why the Bill should not say so. It is not a subject of a Pepper v Hart assurance. The courts would find great difficulty in Pepper v Hart assurances covering assurances as to when powers were open to use when the Bill says that they are open to use in other circumstances. That is not a question of not trusting the Government; I hope that there is no nonsense about this. It is a question of what an Act of Parliament says and—to go the furthest that I can—what a future Secretary of State might do. I hope to goodness that this does not happen, but if the present Secretary of State fell subject to a misfortune and was no longer available, a future Secretary of State would have to take a view and he might take a different one. After all, Governments change their minds from time to time, just as, it is to be hoped, even oppositions do.

Therefore, the question is what the Bill says and not what the Government intend to do with the powers that they obtain. The fact that they obtain very wide powers but only intend to use them, as far as they can see at present, in narrow circumstances is a matter for amendment, not for assurance. What any future Government might do may not meet those present intentions.

Consequently, I have tabled this amendment to ask why further consultation has not been provided for either in the Bill or, in some way, in the Local Government Bill. The Minister will explain if there is some mistake as regards the Bill in which it should appear. I want to make good my proposition that consultation under the 1947 Act would have been very specific and very wide and that consultation under the future proposed code of guidance would also be very specific and very wide. It would also be very relevant to the circumstances that the Minister has insisted we are dealing with at the moment—namely, the circumstances referred to by the White Paper. One would have hoped that they would be dealt with by better-thought-out legislation following that White Paper and not in this interim Bill which we all understood was to be proceeded with only if there was not a settlement.

Before the repeal of most of Section 19 of the 1947 Act, the authorities which were dealing with proposals to get the Secretary of State to make orders on a wide variety of matters were required to consult over a wide area with those, "who had legitimate expectations" for that consultation to take place. In August 1998, in the case of Regina v The Secretary of State for the Home Department ex parte The London Borough of Greenwich, which is unreported but for which I have the judgment, there was a long discussion by Mr Justice Tucker on what is meant by "legitimate expectation of consultation", especially legitimate expectation on the part of local citizens and a local authority. The result of the case does not matter because it turned on that interpretation of a legitimate expectation.

In that case, Mr Justice Tucker said that he had been reminded of four basic requirements for consultation, which were:

  1. "(i) It must be at a time when proposals are still at a formative stage
  2. (ii) sufficient reasons for any proposal are given to permit intelligent consideration and response
  3. (iii) adequate time must be given for such consideration and response [and]
  4. (iv) the product of consultation must be conscientiously taken into account in finalising any statutory proposals".

A circular distributed at the time stated: The Secretary of State regards it as desirable that any proposal for a reduction which requires approval should have been sufficiently widely publicised in sufficient detail and with sufficient time to enable any interested party to make representation so that they can be considered by the fire authority". I appreciate that that was under the 1947 Act and relates to the first part of my amendment or my question as to why this should not be the basic rule, whatever exceptions are made in terms of emergencies or special events.

The second part of my amendment, which is an alternative and not a conjunction, states that the consultation must normally be equivalent to the terms of the guidance on consultation and the best practice advice given to fire authorities. There was great trouble on this on 24th June when the Local Government Bill was debated in Grand Committee. Members of the Committee will find it in Hansard dated 24th June. I had the column reference, but I fear that I do not have it now.

To put it in one sentence, the trouble was largely that although the Government said that the draft consultation had been put in the Library, noble Baronesses from the Conservative and Liberal Democrat Benches said that they could not find it and that the Library appeared not to have it. Fortunately, my noble friend Lord Bassam said that if that was the case he would make certain that the draft consultation would be in the Library. I have since managed to find it. The Library has it, at any rate, now.

5.45 p.m.

Lord Rooker

It has been there all the while.

Lord Wedderburn of Charlton

The Minister says it was there all the while. If he looks at the deposit details on the documents, he may wish to consult his advisers about that. I say that only because I do not want any misunderstanding about what I have done. I have got it.

This is very important. Consultation Guidance Note 2, Annex C, in summary, says that Section 19(4) of the Fire Services Act 1947, as amended in 1959, provided that the Secretary of State had to make decisions on this, but that, The Local Government Bill currently before Parliament … seeks to repeal section 19(4)". It continues: This Note puts the requirement to consult into the context of the new Fire Authority Integrated Risk Management Planning process". Since the present past dispute—I say "past dispute"—has been raised a lot, it is fair to say that the union has, in most people's eyes, fulfilled its job of consulting about fire integrated risk management planning in a perfectly responsible way.

The document goes on to a most important set of propositions. Paragraph 3.5.3 sets out the examples of proposals for change. Many of these examples of proposals for change overlap subjects which are, of course, the contents of parts of the White Paper but, more important for our present purposes, could easily be the subject of proposals for orders by the Secretary of State under the Bill which we are now discussing.

With the leave of Members of the Committee, I shall summarise them—I am prepared to read them all—in the following way. There are demands that certain people should be consulted in certain eventualities. Communities, business organisations, local authorities in the area covered and employee representatives should be consulted in the following types of case: Alteration in policies/standards set by the fire authority for attendance to specific types of emergency incident. Alteration in standards and/or targets set for preventative activities to achieve improvement in community safety". The next case is very relevant: Removal from service of pumping and/or special appliances [and] Permanent relocation of pumping appliances". Similarly, the last case is a change in crewing patterns. No one can say that that is not relevant for the present situation or that it is not one on which the Secretary of State can, under this Bill, make orders.

There is another category which requires consultation only with employee representatives, which are: Relocation from one fire station to another of a special appliance providing cover" [and] Changes in the number of personnel provided to crew appliances". I have to say at once that it may well be said that Clause 1(3) and (4) cover the area of the second kind of consultation with employee representatives in respect of the matters that I have just stated, although who those employee representatives are is a matter to which we shall come on a future amendment.

Therefore, to conclude, I want to put the question again. Albeit that special provision could be made in the Bill for emergencies, terrorism or perhaps a long list of cases, would it not be better to tie in the law as it is going to be stated under the Local Government Bill and the codes of guidance for consultation under the document now in the Library in the future? I should have said that it is a draft; it is not yet effective. Would it not be better to tie this Bill in with that area of the law and soft law of codes of guidance, rather than just leave the matter to be discussed in two separate Grand Committees, two quite separate Report stages and, if the Government insist on going on with the Bill, apparently two quite separate and scarcely related Acts of Parliament? I do not believe that that is a good way to make law. As I say, the object of this amendment is to get the Government's general view on this and to move them in the direction of explaining to us all on the face of the Bill just what the relationship is between the two measures. I beg to move.

6 p.m.

Lord Rooker

The short answer to my noble friend's last question is "No" but I shall seek to explain why. Amendment No. 5 is one of a number of amendments concerned with arrangements for consultation on the Secretary of State's proposals to make an order fixing or modifying conditions of service of fire brigade members or an order containing a direction to a fire authority about the use or disposal of property or facilities.

I really do think that my noble friend's amendments are largely unnecessary. Furthermore, they could inadvertently lead to a situation where it is more difficult for those providing emergency fire cover to gain prompt access to fire authority assets so that the public can be properly protected. I shall give some examples.

Clause 1(3) requires that before making the order fixing or modifying conditions of service, the Secretary of State must consult the "negotiating body" about his proposals and give the body 21 days to make a report which he must then consider. The arrangements for consultation on proposed directions to fire authorities are set out in subsection (4). The Secretary of State is required to consult such persons who, in his opinion, are likely to be affected by the proposed direction or representatives of such persons. That clause does not specify a timescale for those consultations.

The arrangements are different from those for orders about conditions of service because they deal with quite different things. I would draw the attention of Members of the Committee to paragraph 12 of the Explanatory Notes which accompany the Bill. It states: Property or facilities include land and equipment or other assets or facilities … Examples of purposes for which this power might be useful are to provide joint control rooms, to direct that equipment be placed at the service of third parties or to direct that equipment be distributed on a risk assessment basis". In particular, I am singling out the second of those examples which, in the event of further strikes, would allow the Secretary of State to make fire authority assets available to those providing emergency fire cover. Those assets could include such things as fire stations, fire appliances and specialist equipment such as aerial platforms. If there were to be further strikes, it would clearly be important to gain prompt access to those assets so that the public can be properly protected. The Bill—this is the reason why the answer is "No" —is not intended to make provision for the long term. That is the whole point of the Bill. It is not intended to make provision for the long term. It is a temporary measure; it is a long stop designed for a quite specific purpose of dealing with the recent dispute and its immediate aftermath if the timetable that has been negotiated is not maintained and there are further difficulties. I accept that it is based on that premise, as I said at Second Reading.

The longer term vision for the fire and rescue service has been set out in the White Paper. Obviously, we propose to introduce legislation to implement its proposals at the earliest opportunity. What I have said is relevant to Amendment No. 5 which refers to Section 19 of the Fire Services Act 1947. Clearly, Members of the Committee, if they were not, are now more familiar with that section. For the record, it requires fire authorities to obtain the consent of the Secretary of State before doing some quite detailed things—an example of which is to close a fire station. I accept that that is not a detail but fire stations close for all kinds of reasons. The kind of detail is, if a fire authority wanted to change the number of fire fighters or fire appliances in a local area, it would be required to obtain the Secretary of State's approval. We think that that is a power that is long overdue for taking down to a much more local level. Hence, its inclusion in the Local Government Bill which is still before your Lordships' House.

Amendment No. 5 would require the Secretary of State's consultation to include the persons who might legitimately expect to be consulted in the event of a Section 19 application. The fact is that there is no statutory right to consultation on Section 19 cases. Anyone would think that there was, but there is not. But government guidance on Section 19 matters suggests—by and large Government try to work with consultation on all kinds of issues before changes are made—to fire authorities that their consultations in such cases should include accredited fire service trade unions. So there is government guidance on that but there is no statutory right to consultation on Section 19 cases.

As an alternative, Amendment No. 5 suggests that consultation should be conducted in a manner similar to that set out in the guidance to fire authorities on consultation arrangements for drawing up the integrated risk management plans. That guidance includes—absolutely rightly—a list of interested parties which the fire authority would be expected to consult. These are all perfectly reasonable ideas about how consultation should be conducted. If they were not, we would not have applied them to Section 19, although they are not statutory, or to the integrated risk management plans.

But—here is the big "but"—they are not appropriate for all directions which might be made under this power in this temporary legislation. That is the point. Again, I stress that it could be necessary. I cannot envisage the circumstances, but we must take account of that because that is what this Bill is about. It is to enable the Secretary of State to take prompt action in order to protect the public. Amendment No. 5 would mean that his ability to do so would be constrained. Therefore, I ask my noble friend to withdraw his amendment.

Lord Wedderburn of Charlton

I am most grateful to the Minister for his response, which was somewhat complicated. Therefore, I shall try to deal with the points that he raised and suggest that, although in Grand Committee we have no other procedure than to withdraw amendments, he ought to think about it again. I preface my response to him by daring to repeat that if he wants to make provisions for emergencies, special or catastrophic events or whatever he likes to define, they can be made in the Bill.

The Bill is about the powers of the Secretary of State. What is suggested is that the basic powers should be subject to consultation of the kind that was available in the past under the 1947 Act—if the repeal of the 1947 Act goes through, Section 19 will not be available—or under the code of guidance, the draft of which has been put before your Lordships and before the public. I have what many regard as the disadvantage of being a lawyer. The number of jokes about being a lawyer is such that we must bear. Those who are not lawyers have the great advantage of being able to state propositions of law with great abandon. Lawyers, apparently, are not supposed to do so.

My noble friend said that there was no statutory right under the 1947 Act of legitimate expectation to consultation. I have tried to research the matter and it had better go on the record that Mr Justice Tucker, in 1992, in the London Borough of Greenwich case which was about the Shooters Hill fire station closure and the re-establishment of a station elsewhere, said: Counsel for the 2nd Respondent submits that the Authority had no duty to consult the Applicant before making its decision on 23 October 1997, and that so far as the Authority was concerned there was nothing which could have given rise to any legitimate expectation that the Applicant would be consulted or re-consulted. In any event, it is submitted that sufficient consultation took place in late 1995 and early 1996". That was the major issue in the case. He continued: In my judgment there can be no doubt that, as conceded by the Secretary of State, the Applicant had a legitimate expectation that the Secretary of State would consult the Applicant prior to approving the closure of this or any other fire station in the Applicant's area". That is all I rely upon in that judgment, but it is totally opposite to the statement of the law as propounded by the Minister.

To continue from that, my amendment—although, in many ways, I can see that it might be criticised for its drafting—does not demand even that the 1947 Act type of consultation be retained as the basic rule, subject to emergencies. My amendment does not say "subject to emergencies" and it should have done. The Minister is quite right about that. But it goes on to say that there is an alternative to that. The alternative is the consultation in the current draft code of guidance on consultation. If I consult Hansard I think that I shall find that my noble friend said nothing about the draft code of guidance except that it was always in the Library.

I have read the draft code of guidance only recently and have consulted on it. Many think that it is very, very sensible—one of the best things that the Government have produced. Yet, they cannot tell the Secretary of State that, in the case that is not an emergency or a catastrophe, he should abide by that sort of thing. Of course, it is no accident—I have to put this through as a headline—that both the case in 1992 and the examples that we have been talking about have particularly illustrated that this matter could well involve the closure of fire stations.

In relation to closures and particularly to the transfer of pumps and special appliances, the Government have said—and it is quite straightforward—that the Secretary of State has in mind a power to say, "You move all this special equipment from Greenwich to Shooters Hill or from Greenwich to Hampstead". But in that case, if it is not an emergency or a catastrophe situation, why on earth should not the Secretary of State consult not just those people who, in his opinion on some subjective formula, are within his range of view? The Minister said that he cannot imagine all the situations that could arise, but that he should have an objective series of criteria from which to begin as the basis for consultation. I do not understand the Minister's reply on this. Unless he has anything further to add, it is clearly a matter on which we ought to come back, if this Bill ever reaches Report.

I want to express the hope again that the Government will make clearer in the legislation the relationship between this Bill—if they pursue it—and the Local Government Bill. Otherwise, there will be enormous confusion. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Turner of Camden moved Amendment No. 6:

Page 1, line 17, leave out from "section" to ", the" in line 18.

The noble Baroness said: In moving Amendment No. 6, I shall speak also to Amendment No. 19 with which Amendment No. 6 has been grouped. This has some bearing on what has already been discussed because the intention of Amendment No. 6 is to remove from paragraph (3) the words, that fixes or modifies conditions of service of fire brigade members".

The reason for that is that by doing so it automatically gives the Secretary of State the obligation to consult in relation to what is provided for in paragraph (1)(b) which states: give specific or general directions to fire authorities about the use or disposal of property or facilities".

I listened carefully to what the Minister had to say on that issue on the previous amendment. It seems that decisions which affect the provision of local facilities—either the disposal of property or the way in which that property is used; whether it is intended to lease it out or whatever—clearly have an effect upon the workforces involved in that particular location. There may be less reason to have certain people. There may even be a requirement for a different kind of staff. There may be a need for more administrative staff and fewer staff who have to deal actually with fires. It can have a very major effect in the locality upon the fire services working in that area.

It therefore seems quite reasonable that there should be an obligation upon the Secretary of State, the Deputy Prime Minister or whoever to consult in the way suggested about other conditions of service for fire brigade members. As I said, there has been some discussion of this already. The present amendment is a much simpler form of amendment than the one suggested in Amendment No. 5. But it simply sets out what we have in mind, which is to ensure that before there are very substantial changes in the way in which the facilities are provided locally, those members of staff who are likely to be affected have the opportunity to have some input via whatever negotiating procedures eventually evolve.

Of course, we know that in the White Paper it has been suggested that there should be other means of negotiating than the ones that at present exist. But we are not discussing that at the moment. Clearly, discussions involving both sides are already proceeding about how future NJCs should be conducted. Whatever procedures eventually evolve as a result of those discussions, they need to be involved before people at a particular location are substantially involved as to their working conditions, the number of employees and so on. I beg to move.

6.15 p.m.

Lord Campbell of Alloway

There is something in the amendment in the context of my reference to the interaction between paragraphs (a) and (b). I cannot support it because 1 am on a totally different tack, but there is relevance.

Lord Rooker

Amendments Nos. 6 and 19 would extend the Bill's consultation requirements. The Secretary of State would have to consult the negotiating body about the proposals to give directions to the fire authorities on the use or disposal of property or facilities. As my noble friend admitted, we have discussed related general issues when debating Amendment No. 5, so I shall not repeat them.

I said that there could sometimes be a need for speed so that the public property is protected. Amendments Nos. 6 and 19 would mean that that would not be possible. The Secretary of State would have to allow at least 21 days for the negotiating body to report on its proposals, and then he would have to consider its report. That is unacceptable. If such a situation arises—we hope that it does not—we will not be in the position where valuable assets that can be used to protect the public lie idle during the strike instead of being used to protect the public.

I am sure that those proposing the amendment do not intend that to be an effect—perhaps they do—but it is what would happen in the circumstances of the Bill. I am not saying that there is a legal use of the word "emergencies", but the Bill is a temporary measure. It is time-limited and would be used only in circumstances that would almost amount to an emergency—it would mean that the conditions of the negotiations and the timetable had not been adhered to as a result of the fire dispute. We do not want to use the Bill; we do not want to implement it; we do not want the powers, but we are being quite responsible in saying that we need them as a back-up just in case.

In the circumstances of such an occurrence, it would not be possible to wait for 21 days before using publicly paid-for assets to help people to fight fires and save lives. I therefore hope that the amendment will not be pursued.

Lord Wedderburn of Charlton

Perhaps my noble friend might comment on two aspects that I shall raise as questions. Naturally, he says—I think that this is common ground—sometimes some events may occur where "there is a need for speed" and "a need to protect public property". I think that I quote him correctly. He keeps referring to a strike; I do not know what strike he refers to—perhaps it would be a strike, but it may be a terrible change in climate. Will my noble friend consider accepting the spirit of my noble friend's amendment and including something like it in the Bill, subject to any occurrence so awful that there must be immediate speed without consultation with employees in respect of the matter?

Secondly, does my noble friend not accept that it is illogical to require consultation with the national joint council, including representatives of employees, on matters relating to conditions of service—I summarise Clause 1(3)—and not to require any specific discussion with them through consultation where the direction to be given under Clause 1(1)(b) regarding disposal or usage of property directly affects their conditions of service and working conditions? If a direction under Clause 1(1)(b) has immediate impact on working conditions, why should there not be parallel consultation with the national joint council on that type of use of power under Clause 1(1)(b)? That is the point, I apprehend, of Amendment No. 19, which is grouped with this amendment.

As a post-script to those questions, when the Minister says that the Bill is time limited, he refers to the existence of the Bill. Unless he anticipates accepting some amendments that my noble friends and I will move later, as I understand it, he is not denying that powers that are utilised under the Bill will give rise to orders that will continue to exist so long as the Secretary of State decides not to revoke them. Those orders may therefore continue to exist while the White Paper, the next Bill and perhaps the Bill after that is discussed. There is no automatic time limit to the orders; there is an automatic time limit to the Bill.

Lord Rooker

That is what I said; there is a time limit to the Bill. If it is not used in two years, it lapses, it cannot be used and it goes in the rubbish bin—to my mind, that is a time limit on the Bill. If the Bill is used and an order is made, a crisis situation will have required the Bill to be used. As I said at Second Reading, having made orders that have affected the situation, you cannot chop things up. There is a procedure in the Bill for dealing with that.

I cannot qualify the speed issue because neither I nor my noble friend—expert though he is—can give examples to be included in statute to say, "Those are the things that we do not think will happen, but, if they do, we will have to use the Bill". The whole point of drafting the Bill in this way is that it would be used in those circumstances where the democratically elected Secretary of State in the other place, unlike us, would have to be accountable for his decision. He would have to judge whether to use the powers and would be accountable to Parliament. There is no question about that being done behind closed doors and his not being accountable. I cannot give chapter and verse of the kind of examples. If I started thinking aloud and giving examples of what might happen, I could be accused of giving horror stories.

The Secretary of State must consult the people likely to be affected by a Clause 1(1)(b) direction, which is set out in Clause 1(4). But, for the avoidance of any doubt, during part of the previous dispute, the general feeling was put about that the Fire Brigades Union owned the fire appliances. There was a feeling that the fire stations were theirs—they are not; they are public property. One thing will be made abundantly clear in future: we are not going down that road. The equipment and fire stations were put there by the taxpayers. The brave service-people of the Fire Brigades Union man the fire stations, but they do not own them.

That is why, if we need to move the assets quickly, for the purposes I have given—whether it is fire appliances or special lifting equipment—there will not be time for consultation. We do not need to go to the owners; the public are the owners. If the decision is taken to move those appliances in the public interest, that is what we would be accountable for. It is why you cannot build in a full-scale consultation to that aspect of the Bill.

Lord Wedderburn of Charlton

Before my noble friend finishes with the point, I think that this comment will save time. I know nobody, other than ignorant journalists, who alleged that appliances in fire stations belong to the union. I hope that the Minister's advisers are better than that. The union certainly did not make that allegation. If he can quote a union circular saying that, I invite him to do so immediately.

My noble friend commented that this House should have no truck with placing limitations on the Secretary of State because he is elected and we are not. If the Government do not wish to reform this place, they must use the procedures that are there and not complain about limits put on the Secretary of State because he happens to have been democratically elected. If that really is the Minister's position, we might as well wind up this Grand Committee. If it is not, he must answer a very serious question.

I do not wish to try to draft a provision now, but I offer my co-operation in drafting a clause that would exclude cases needing great speed to deal with, in general terms, something like catastrophes and emergencies, but, apart from those cases, would lay the groundwork of consultation, which will be imposed under the Local Government Bill, and which orders under this Bill could be opposed to.

The Government are going to enact two pieces of legislation that could give rise to totally inconsistent situations. I am happy to take the case of a closure—the Local Government Bill would demand consultation in a particular way, and this Bill would allow the Secretary of State to make an order. That order will exist until he revokes it. There is no point in telling me that the Bill will come to an end in two years. Of course I know that the Bill will end in two years—we can all read—but the orders will not. Therefore, there could be inconsistency. I plead with the Minister to consider that very serious point. A quite inconsistent piece of legislation could be pushed through by the Government if they continue with the two Bills as they are at present. Surely he does not want that.

Lord Rooker

I shall answer simply: the Local Government Bill, assuming Parliament agrees it, will be on the statute book for ever, like all other legislation. It is a normal part of our process. Similarly, the new Bill, when it comes as a result of the White Paper, will be the future of the Fire Service and will last forever in the parliamentary sense. This Bill will not; that is the difference.

Lord Wedderburn of Charlton

Will my noble friend define at what point in time, in relation to the big Bill that is coming, the Government will remove the repeal of this legislation if it is passed?

Lord Campbell of Alloway

Having listened to the debate, I hope that the Secretary of State does not set aside the Committee. This debate has produced what could be an acceptable and simple answer. If one accepts in good faith, as I do, everything that the noble Lord, Lord Rooker, has said about the intentions of the Bill and the circumstances in which it would be used—emergency or near-emergency ones and no other—and then think how Secretaries of State operate in similar situations, it is always with the authority of affirmative resolutions of both Houses. That does not have to be defined because we know that the Secretary of State makes an application on certain circumstances that he has stated and Parliament says whether those are emergency or near-emergency circumstances. Parliament can limit the time for which the provision operates. Under my amendment, it can alter the provisions of the Bill.

Leaving aside my amendment, one could approach the matter much more simply. The Bill will be operated only in the circumstances that the noble Lord, Lord Rooker, gives. Perhaps the noble Lord, Lord Rooker, might accept that affirmative resolution—an application that is quickly made—by both Houses of Parliament is a way of dealing with the issue.

Lord Rooker

The only answer is that if Parliament is not sitting, we are up a creek, so that is not the solution.

6.30 p.m.

Baroness Turner of Camden

I thank the noble Lords who participated in this important discussion. I note what the Minister says about the need for emergency cover, as I understand it. I wish to consider very carefully what the Minister has said and perhaps return on Report with an amendment that might cover the problems that we envisage arising if people are not properly consulted, but that also takes account of views expressed about the possibility of cover in an emergency. I think that it would be possible to draft something along those lines and hope to do so for Report stage. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Turner of Camden

moved Amendment No. 7: Page 1, line 18, after "members," insert "or that is likely to affect directly or indirectly the employment or job of any member of the fire brigade, or the recruitment of persons as such members by any fire authority,

The noble Baroness said: Amendments Nos. 7, 8 and 18 are very similar to those that we have already discussed. They are grouped with Amendment No. 18, which is a slight variation in that, while the others refer to, indirectly the employment or job of any member", in other words, the workforce, it refers, for the first time, to the community. That is quite important. Amendment No. 18 would insert the words: and the proposal for any such order shall state the estimated effect upon the employment, terms of employment of jobs of persons likely to be affected … and on the community affected by the order". Whether or not there is an emergency, if a fire station is to be closed, there is a community interest. That may be covered by the Local Government Bill; I do not know. In responding to this amendment, will the Minister deal with the community point? I beg to move.

Lord Rooker

This is part of a group of amendments on consultation, therefore I do not intend to repeat the general points that I made with reference to Amendment No. 5, though they apply equally to this group. Amendments Nos. 7 and 8 further extend the requirement in Clause 1(3) so that consultation must take place if the Secretary of State's proposals to make an order or give a direction would affect the employment, hours or conditions of work of fire brigade members, or the recruitment of members. Amendment No. 18 has a similar effect.

Clearly, everyone must be concerned about the potential effect of the proposed directions and orders about conditions of service on the employment terms of fire brigade members or contractors and recruitment of staff. The amendments would mean that the negotiating body would have to be consulted about those matters in so far as the amendments did not stop the Secretary of State making an order about them anyway.

I do not think that the amendments are needed. First, the negotiating body will be consulted about any proposed orders on conditions of service. It will be up to the negotiating body to decide whether, in its opinion, the orders affect employment or recruitment, and to include its conclusions on those points in the report that it makes to the Secretary of State. There is no real need to spell that out in legislation.

Another point that we have not touched on so far, but which is worth putting on the record, is whether or not a Secretary of State is required to consult he is under a general requirement to act reasonably. I know that people say that Ministers always claim that they are acting reasonably, but those actions are always subject to being tested in certain circumstances before my learned friends. The Secretary of State must take advice, but there is a general requirement to act reasonably and not irrationally or on the basis of a hunch. It is therefore extremely unlikely that the Secretary of State would not consult fire brigade staff or their representatives if he thought that they were likely to be affected by the proposed direction.

However, the directions to fire 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 wish to make that clear. A direction about the use of assets could have an impact on staff. I accept that point from previous debate. But that is not the route by which we would seek to change the terms and conditions of staff, given that we would have the powers in Clause 1(1)(a).

So far as concerns the detail in respect of Amendment No. 18, which refers to, the community affected by the order I have not taken advice. However, I have not got a clue about the matter, as it is as long as a piece of string. I can see the provision being used as a tool for prevarication and lots or debate. In my former life, when a fire station closed for a new one to be built there was a moot point about which community was affected: the one that lost the fire station or that which gained a new one nearly three miles away. As it was the first community fire station in the country, I supported it fully. I am not clear about the matter, so I cannot give my noble friend a positive answer. The term, community affected by the order is probably as long as a piece of string.

Baroness Turner of Camden

I thank the Minister for that response. Again, I wish to consider what he has said. I do not know about the Local Government Bill, as I have not been following its progress. Is there anything in that Bill that would cover the community at all?

Lord Rooker

Speaking from memory, no. The Bill contains 120-odd clauses of which only one—or two at a maximum—relates to the fire Act and deals with only Section 19. The rest of the Bill deals with Section 28 and a whole new range of capital expenditure and a new financial structure for local government. But it includes nothing that would help in this respect.

Lord Wedderburn of Charlton

Before my noble friend finishes with the point, does he not agree that the draft consultation guidance, which, I apprehend, is a consequence of Clause 120 of the Local Government Bill, clearly sets out that many of these matters are to be the subject of consultation with communities, business organisations, local authorities in the area covered by the matters concerned and employee representatives? I shall not read them all out again, as I did so in moving Amendment No. 5. There did not seem to be great difficulty in defining it there. Is the Minister aware that that code of guidance will exist parallel to this Bill?

Lord Rooker

Of course I am, but this Bill has a totally different purpose. As I said, the codes of guidance apply to the Local Government Bill and not to this one.

Baroness Turner of Camden

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 8 not moved.]

Lord Wedderburn of Charlton moved Amendment No. 9:

Page 1, line 22, after "proposals:" insert— ( ) publish that report within seven days after it is made:

The noble Lord said I beg to move.

Lord Rooker

This requires the Secretary of State to publish the negotiating body's report on his proposals within seven days. If someone can tell me why it is needed in the Bill, I can probably give an answer. However, there is nothing in the Bill to stop the negotiating body publishing its report. I am sure that it would wish to do so. I have nothing more to say.

Lord Wedderburn of Charlton

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord McCarthy moved Amendment No. 9A:

Page 1, line 24, at end insert— (d) where a report under paragraph (c) shows that there is no dispute or disagreement between the members of that body concerning the matters dealt with in his proposals, whether or not they agree with his proposals or prefer provisions different from his proposals, withdraw his proposals and engage in new consultation with them.

The noble Lord said: I must be careful because I am concerned about how I can get a response from the Minister without falling into one of his reservations. If I understand him correctly, he is telling us that he speaks on a subject only once, whether or not we understand what he has said. I think that he also said that he could not consider anything if he knew that the Secretary of State did not want the power being offered to him. If we are told that he cannot consider anything that he knows the Secretary of State does not want, we will not be here for very long.

The Minister then said that it was a short-term Bill and that he could not consider long-term matters. I wish to say something on an issue that is quite long-term and about which I do not think we have spoken. Perhaps the Minister will tell me that he has done.

The amendment refers to the situation, where a report … shows that there is no dispute or disagreement between the members of [the negotiating committee] concerning the matters dealt with in his [the Secretary of State's] proposals We suggest that, where there has been a failure to agree and it has reached the point where the Secretary of State has made his proposals, they will consider those proposals. The amendment further states that, whether or not they agree with his proposals or prefer provisions different from his proposals". If the negotiating parties should agree, the Secretary of State should, withdraw his proposals and engage in new consultation". In other words, the process begins again. But the Secretary of State must seriously consider the proposals that the negotiating body has made because there is an agreement between the parties.

This is not about conciliation, mediation and arbitration. It is the amendment where we want to raise the issue of why, if there is an agreement between the parties, it is necessary to have resort to the compulsion in the Bill. The parties agree. Perhaps they agree because there has been a threat compelling them to agree to something that they do not like. Perhaps what they agree is significantly different from the terms of the proposal advanced by the Secretary of State, but they agree. Why should we then have that agreement set aside—perhaps the Government do not think that that would happen—and the Government going their own way?

One could take the view that the amendment is unnecessary because the Government have the opportunity to sit in, to ring up or to control. At Second Reading, I referred to that act as being a ghost at the bargaining table, whereby the Government are there on the employers' side. If I believe what I was told in newspapers when this dispute was not settled—perhaps it is wrong—there were two separate occasions when the Secretary of State in effect blocked an agreement that could have been undertaken between the parties. We never found out quite why—whether he said that it was not detailed enough or that it would cost a lot of money. At any rate, he stopped an agreement; he was an effective ghost outside the room.

It might be argued that that is what will happen now. If the parties disagreed and the Secretary of State had gone far enough to issue one of his orders, he would certainly ensure that the employers' side did not agree something different from what he put in his order. You might say that this is just a decoration effect. I am not certain of that; nor am I certain that the Secretary of State will always have complete control. Some disputes may not involve large sums of money but rather different ways of doing things.

In any case, in a sense, this is a probing amendment, but it is also a decoration. As I believe in collective bargaining, I think that, where the parties agree—if the union can get its representatives outside the room to agree and the employers' representatives can get their side to agree—there is something there that ought to be honoured. I would like the Minister to tell me that, if there were an agreement between the parties, it is inconceivable that the Secretary of State would not accept the results. I shall wait and see. I beg to move.

6.45 p.m.

Lord Rooker

The answer to my noble friend's final question would be edged around in some ways. To any reasonable person, I suppose that the answer would be yes, but it would depend on whether we were talking about the private sector or public sector. If the unions and employers have done a deal that the employers are prepared to pay for, fine. If it happens to be in the public sector and it comes down to Ministers to be accountable, that is asking for a blank cheque, which is not a runner, as we have made abundantly clear.

I shall stick to Amendment No. 9A. My noble friend said that it was probing, but it completely wrecks the Bill. It goes against the whole thrust of the Bill. That is why it is not acceptable. Let us take a negotiating body. I do not know about this case, not being the policy Minister, but I understand that there are perhaps two or three dozen members; I know that there are negotiating committees. If a negotiating body of employers and the union held a common view on the Secretary of State's proposed order on conditions of service, the proposals would have to be withdrawn and a new consultation would have to be undertaken.

Effectively, that means that together the negotiating body has a veto over what the Secretary of State proposes to do. The whole point is that the Bill would come into being as an Act to be operated only if the Secretary of State had got to a position in which he wanted to draw a line under any future dispute by making certain impositions. That is what it is about. That is why we will be very reluctant to use the powers. We do not want the powers to be used, and we certainly hope that we do not have to use them. However, if we need to draw a line under another dispute, it means imposing a solution.

The proposal that the Secretary of State has the power to draw a line by making impositions has been approved in principle by both Houses of Parliament. Not to put too fine a point on it, this place unusually voted on Second Reading to approve it in principle. Amendment No. 9A would stand that completely on its head. It would turn it completely upside down. The very parties whose failure has led us down this route in the first place—to get the Bill activated, to make the Secretary of State want to make proposals to issue an order—have then been given a veto to say, "Oh no, we don't like what you're doing". That is why the amendment is completely unacceptable.

The Secretary of State is trying to improve matters, or at least to protect the public in those circumstances. The provisions are not for generality, but for the purposes of the Bill, which deals with a very unusual situation. I hope that my noble friend has probed far enough, and I hope that I have answered him.

Lord Wedderburn of Charlton

My name is also attached to the amendment, and I want to ask the Minister a question on it. He says that the amendment wrecks the Bill, because the Government do not want to use its powers. With great respect, we have already met the point—I hope that we will not come back to it—that what the Government intend is nothing whatever, so far as law-making is concerned, to do with what the powers are. If the amendment wrecks the Bill, it means that the Government would have taken the powers if there had never been a strike, and if the parties had always been in agreement.

These are powers that the Government want to have. On the argument of my noble friend, I would be very reluctant to give them up. As my noble friend Lord McCarthy said, their heritage is not to be found in collective bargaining as applied by the ILO to the public sector. I stress the public sector. We shall come to ILO convention 151 and have specific amendments about it. Therefore I shall make that argument later.

Supposedly, the amendment wrecks the Bill because of the powers given. I do not know whether the Minister meant to make a Pepper v Hart assurance that the Government will not use the powers except where there is a catastrophe, emergency, dispute, strike or problem, and I am afraid that I cannot remember his exact words. If that was a Pepper v Hart assurance that will be repeated on Report, it would be very important to the fire authorities and to the Fire Brigades Union. I apprehend that he will want to consider whether he is giving that assurance.

I notice that the Minister placed great strength on the public sector. I know that we are discussing only the Fire Services Bill but—let us not beat about the bush—of course some people outside this place fear that what is applied to the fire services may be applied to other parts of the public sector. The general secretary of UNISON was not joking when he said that it would not be treated as the Fire Brigades Union has been treated. If the public sector is cited in a general way, presumably the desire is to apply the provisions to the public sector as a whole. The Minister introduced the term, not me.

The Bill is something that the Government want to have. Will they give up the power in their big Bill? Perhaps it is too early to say, but they are suggesting in the White Paper an intention to impose so many conditions on collective bargaining that many people are very afraid, and afraid of the legality under the international legal instruments that apply to the public sector.

I do not understand what the Minister is saying, unless he is saying that the Government would want to have the power whether or not there was any disagreement between the parties, and whether there had never been a strike. He must be saying that they would want the power over the whole of the public sector, as a kind of inferential parenthesis to discussion of the Bill. He would be saying that the amendment would wreck the Bill, despite the fact that they do not want to use the powers, because they want to have the ability, either for this or some other Secretary of State, to use them.

Lord Rooker

I have a short answer to that. It is no good playing with words about the public sector. I was asked a question, and I shall refuse to answer any more if my words get twisted like they have just been. 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. That was the only distinction I made for the public sector.

I can honestly reassure my noble friend—I shall stand corrected on it if need be, but I am on fairly certain ground—that if there had not been a fire dispute, we should not be here today discussing the Bill.

Lord Wedderburn of Charlton

I hope that my noble friend will consult Hansard and consider making a statement about twisting his words.

Lord Rooker


Lord Wedderburn of Charlton

I am not giving way. As my noble friend said on Second Reading, I shall give way when it suits. I hope that he will look at Hansard carefully and see whether it was possible to infer the fact that the Government would want such a power to deal with society and, more particularly, public sector institutions, and in this case the fire services, irrespective of other circumstances and in particular the agreement of the parties. That is all that I ask.

Lord McCarthy

I have two things to say. I do not believe that the Government wanted to get into a position where they could not really say that they would not use such a power if there was an agreement. The Minister is quite right. In a sense, the Government have got themselves into a situation where they have taken the power, and they cannot bring themselves to guarantee that they would not use it.

In fact, it would be absolutely daft to use it in the case of a dispute in which the two sides had agreed. I am not referring to the subsequent application of that dispute. When the dispute that was settled recently comes to be applied in precise terms, there may very well be failures to agree. The Secretary of State may very well use his draconian powers, but not on the settlement that they signed a few weeks ago. That would be ridiculous, but the Government cannot say that, so they have taken this great instrument and are stuck with it.

The only piece of credible evidence that the Secretary of State gives me is to say, "Money. This is a fully funded service, and you can't sell the product at a price because it is a free service". On a side whim, only a fool thinks that one can have a self-financed productivity deal, but we shall not go into that for the moment. He says, "You can't produce a product. Therefore, of course, the Government have to control the purse strings". Of course they do. That is why it is extremely unlikely that, if there were any significant difference in the cost of a deal, the employers would go in one direction and the Secretary of State would go in another.

There might be a difference of practicality, however. The employers might feel that the Government were doing everything wrong, and that that would perpetuate the strike. The difference might not be of money, but style. It might be—if I were on the employers' side in the latest dispute, I would have said this—that many things put into the case on the government side would cost more money rather than save it, and would never come about anyway because they were totally impractical. The employers might pluck up their courage and say, "It is not a question of money, but of style. We after all are managers, and we would like to settle". If they had had the guts to do it, the Government would swallow it.

The amendment does not say necessarily that there might not be further consultation between the Government and the parties. Under it, the Secretary of State could withdraw his proposals and engage in new consultation. He abandons his previously legally backed solution to the problem. It would be a very strange world if, in those circumstances, a Labour government did something so ridiculous. However, I cannot be sure, so I want the Government to consider their position further, and we shall ask them in a more precise way what they would do in those circumstances on Report. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord McCarthy moved Amendment No. 10:

Page 1, line 24, at end insert— (3A) Where the members of the negotiating body—

  1. (a) are in disagreement or dispute in relation to any issue concerning the application or interpretation of an agreement between them or are unable to reach agreement in negotiations touching such an agreement: and
  2. (b) subsequently either—
    1. (i) settle the issue by agreement, or
    2. (ii) agree jointly to refer the issue to conciliation, mediation or arbitration the result of which is agreed by them to be binding upon them, the Secretary of State shall make no order relating to that issue."

The noble Lord said: I move Amendment No. 10 in association with Amendment No. 12. Amendments Nos. 10 and 12 are in association with Amendments Nos. 11 and 13, and we may or may not get to them tonight.

The Deputy Chairman of Committees (Lord Tordoff)

Is the noble Lord saying that Amendments Nos. 10, 11, 12 and 13 are grouped together?

Lord McCarthy

No. I am sorry; Amendments Nos. 10 and 12 are grouped together, and Amendments Nos. 11 and 13 are grouped together, but they are not complete strangers. In fact—if I say this now it may be clearer—the main difference between them is that Amendments Nos. 10 and 12 are ways of introducing third-party dispute resolution into the application and interpretation of existing agreements. The Americans call those disputes of right, but we do not recognise that. However, Amendments Nos. 11 and 13 are about new agreements. They are rather different. Different methods might be advantageous in different circumstances, and I want to put a few examples before the Committee. That is why I have tabled the amendments in this way.

I am talking about third-party dispute resolution. I want to spend a moment or two on the difference, because I have found that people do not recognise it. I would argue, although I do not want to stress it, that in the process of negotiation in the most recent fire dispute people got the order wrong, as happens quite often. By conciliation, we mean that some non-allied party seeks to bridge the difference between the parties. The essence of it is that they do not make suggestions. They exhaust the suggestions of the parties. However, if that does not work, they may start making suggestions. Usually, the parties ask them to make suggestions. If they make suggestions, that is mediation.

We have moved from a somewhat negative tactic, which is designed to narrow the area of difference and which usually does so, to a situation where people have a real idea what the breaking points and stress points are and they are prepared to consider an approach that they have not thought of themselves. I believe that in the last fire dispute we got to mediation at the wrong time—but I shall not go into that. If one gets to a point where things have been narrowed down and the parties trust each other a bit, one can introduce the notion of arbitration, which is the end point of the system.

In Amendment No. 10, the parties take the initiative. They have got into a mess and failed to agree, so they decide to experiment and introduce third-party dispute resolution. As a result, they settle. It is rather like the amendment that we discussed before. At that point, this amendment says that, the Secretary of State shall make no order". That is firmer than the previous amendment, in which there was no third-party dispute resolution.

The arguments are probably clear, and I shall not repeat them. Let us say that the parties have signed the agreement, but that they do not know exactly what it means because some of the phrases are very vague, as they were put there in order to get an agreement. As a result, the parties have to go back to it when it comes to be applied and introduced. On that comparatively minor issue, which is important but not as important as the signing of a new agreement, we should leave the parties alone. That is one form of third-party dispute resolution, and I want to know what is wrong with it.

Amendment No. 12 is more complex. Here, the Secretary of State takes the initiative. Presumably the situation is more difficult, and the parties are not looking for third-party dispute resolution. I would like things to be committed across the board, as they used to be but now are not. I should like the Government to take the initiative if they get into a dispute in which the parties involved do not want to take the initiative, or cannot. I am not asking them to make speeches on the wireless or to tell the press. I am simply saying that the Government should get involved and try to encourage the parties to introduce some form of conciliation. If the Government take that initiative and as a result there is a prospect of a settlement, the Secretary of State should withdraw his proposals. He delays his order and, once again, if they obtain a settlement, he withdraws. However, if they do not make the settlement, he has to start the process all over again.

Those are only two alternatives. I could have given 22 alternatives. I merely wish the Government to say why they cannot let the parties decide, on the narrow basis of an application issue. Why must we go to law? Why must we do things in that way? There is no doubt whatever that there will be such disputes. The Minister is quite right about that; he said at Second Reading that there would be arguments over future pay advances if there were not sufficient savings to pay for those advances. He said that he was worried that if that happened it would put the whole scheme at risk. He referred to a whole series of new duty systems, work arrangements, rosters and overtime. Indeed, the White Paper is even more ambitious.

Signing agreements, however elaborate they may be, will give rise to application disputes and differences. There will be a lot of them, and the Government will frequently go to conciliation, mediation and arbitration. However, we should not torpedo the process at the start by saying that the Government will set aside a settlement if they do not agree with it, even if it is a binding arbitration agreement. That is an unwise and foolish way in which to proceed and I call on the Government to consider the alternatives in the two amendments. I beg to move.

7 p.m.

Lord Lea of Crondall

I shall be speaking on the amendment and on Amendment No. 33, tabled in my name. Members of the Committee will note that the functioning of conciliation, mediation and arbitration on the application or interpretation of an agreement, which is covered in the last subsection of Amendment No. 10, is also the issue in Amendment No. 33, albeit from not precisely the same angle.

A major concern of both amendments arises from the big question mark that the Government have placed over the whole issue of arbitration. There has been a good deal of confusion about that.

Lord Wedderburn of Charlton

I had prepared to speak on the noble Lord's amendment, Amendment No. 33, but it is not grouped with these amendments. Is he going to move it now? I did not think that we can do that.

Lord Evans of Temple Guiting

It is in order for the noble Lord, Lord Lea, to move his amendment, and he has given notice to the Minister of his intention.

The Deputy Chairman of Committees

It is in order for him to speak to it, but it is not in order for him to move it at the moment.

Lord Lea of Crondall

I am speaking to Amendment No. 33.

I submit that there are two precepts of great importance in analysing the issues. One is to distinguish clearly two classes of arbitration. They are actually in many respects totally different tasks. The first is where the agreement has actually been made and there is a disagreement about an aspect of its application. The second is where a new agreement is still being negotiated.

Those are two fundamentally different situations, as any practitioner of industrial relations and collective bargaining would confirm. It is self-evidently relevant to where we are with the 2003 agreement and its phased application. It is important to see how that fairly basic analysis fits into the time scales of this year, next year and the year after. Obviously, in the context of a staged approach of implementation of the 2003 agreement, sorting out any issues of application in practice, we have a linkage that we must be clear about. With the time scales, we have a two-year or three-year phased agreement. We have a Bill with a two-year sunset clause. A White Paper has been mentioned, but that will clearly kick in after this. In practice, we are addressing the period of the 2003 agreement.

The question arises about the relationship between the Bill and its necessity and the June 2003 agreement. If the agreement is in substance not meant to be touched by the Bill, which would be quite extraordinary, it is to do with implementation. The issue is not a question of negotiating a new agreement starting from scratch on wages and conditions of service but a question of application and interpretation. That application of the 2003 agreement, even if there is some negotiation within it—as clearly there is—is clearly defined by the architecture of the framework agreement. I was going to say "circumscribed", but I shall use the word "defined".

It would in any event be rather implausible that the Government would intervene with the interpretation type of arbitration, given all the circumstances that I have described. With my amendment, it would be even less conceivable, because we would then be quite clear that there are these available avenues. Furthermore, apart from anything else, there is the basic reason in industrial relations logic that, when an agreement is signed, it is clearly then the sole property of the parties—in this case, the Fire Brigades Union and the local authority fire service employers.

We surely all accept that the 2003 agreement—I repeat that that is the only agreement with which we can now be concerned, in the time scale that we are talking about with the two-year sunset clause; that is where we are now—will not be unscrambled by the Government. That is patently obvious. We want to help as appropriate to facilitate, for example, an acceptable umpire or whatever. Side by side with that, for the avoidance of doubt, we need to state that the Government will not try to put up any red light against any mediation, arbitration or conciliation. I use all those words because all, on occasion, have been the subject of interventions over the years.

On that point, I need to go back briefly to the essential antithesis between different situations of arbitration. I doubt that anyone in this Room would assert that, when one is the middle of a wages negotiation or any new dispute of interest in the public sector, the Government cannot give some sort of signal, whether we call it a public sector incomes policy or not. That has been the reality, year after year, for the whole of my professional lifetime as a TUC official.

I acknowledge that if the Government, and the Treasury specifically, are actually paying 80 per cent or so, with the local authority paying 20 per cent or whatever—I think that is the current ratio—they have a direct interest in the outcome. That is a totally different kettle of fish from where we are today, in the time scale that we have today. That seems incontrovertible.

The Government gave very mixed signals about arbitration in the past 12 months. In that period, the Government wished to intervene in mediation and the outcome of mediation, such as by the TUC, and arbitration. We all recall that. There were the attempts to intervene in the major money issue. It was about cost increases—and savings, I suppose—which underlines what is so different about that sort of position and where we are today.

The past 12 months may now be water under the bridge. However, the absolutely key requirement is to ensure that everyone will now understand and accept that they, the parties, can operate with confidence on the basis that a dispute of interpretation on the 2003 agreement can only be assisted by the inclusion of the guarantee in this amendment that all such facilities are available. As I have said, as the agreement is the property of the parties, that is as far as I go in my drafting, because the Government per se have no standing in that regard.

7.15 p.m.

Lord Wedderburn of Charlton

I appreciate many of the points made by my noble friend Lord Lea, but it is necessary to say a word or two about what he has just said before returning to the amendments before your Lordships' Committee. I declare an interest: I am a member of the staff panel side of the Civil Service Arbitration Committee. If I were really to declare all my interests I would have to declare also that I have been in among this subject not just academically but in other ways for some 40 years. I did not quite see that there was an answer to my noble friend Lord McCarthy's case.

Before coming to Amendment No. 10, with which we are confronted, together with Amendment No. 12, apparently it is in order to discuss my noble friend Lord Lea's Amendment No. 33. As lie has not moved it, the text may not appear in Hansard. I therefore want to make sure that it is in Hansard because he spent most of his time discussing, not Amendment No. 10, but Amendment No. 33. Amendment 33 states: For the avoidance of doubt, nothing in this Act affects the possibility of the parties agreeing on a reference to mediation, conciliation or arbitration on the interpretation of the June 2003 agreement between the Fire Brigades Union and the local authority fire service employers". With the greatest respect, I do not think that that adds very much to the Bill. The Bill is about powers of the Secretary of State. Nothing in the Bill affects the possibility that they might say, "We want to refer something", or one of them might say, "Let's agree on referring something to arbitration"; of course not, but the amendment does not say anything about whether the Secretary of State has power to make an order in that circumstance.

In a sense, this is ground that we have partially covered previously in the debate on my noble friend Lord McCarthy's speech on Amendment No. 9A. But nothing in Amendment No. 33 does anything about the sanctity of the parties owning the agreement. I have to say that I have one slight disagreement with my noble friend Lord Lea. He referred to the very well known distinction, which is sometimes couched in the formula that where you make an agreement, particularly a collective agreement, disputes may arise with regard to application and interpretation. Some people call those "disputes of rights". I have never thought that that was a very good title, but it is the usual title in the literature.

In industrial terms, as my noble friend quite rightly says, there is an enormous difference between those disputes and those that may be exemplified most easily in a dispute about a wage claim—a dispute about an agreement that has not already been made. However, most disputes procedures under collective agreements in Britain do not distinguish between those two types of dispute. Most disputes procedures—I apprehend that the same is true under the present situation in what is called the Grey Book Agreement of the National Joint Council and the agreement of 13th June 2003, which enshrines the Grey Book disputes procedures—do not distinguish as is the British habit in collective bargaining finally between disputes of rights and disputes of interest.

I wish I had the relevant book with me, but, since the Minister mentioned Allan Flanders at Second Reading, his golden words in one of his books come back to my mind. I cannot quote them because they are not before me, but I apprehend that they state roughly that, in British agreements, disputes of rights and disputes of interest are not kept separate in procedures, but on the continent of Europe it is quite different. There it is common to distinguish in agreements between procedures applicable to disputes of interest and disputes of rights. If noble Lords think that that is right I shall bring the book for the next session of Grand Committee.

My noble friend Lord Lea is perhaps confusing, with his great experience of European procedures, what happens under those agreements, what happens here and in particular what happens under the agreement, which he specifies between the FBU and the fire authorities of June 2003, which we have somewhere on the table, and he has on the table, so we can all refer to it if need be.

With that excursion behind me, I shall return to the matter before your Lordships; namely, Amendment No. 10. There were certain points, which my noble friend Lord McCarthy in his admirable quest for brevity did not perhaps highlight. He did infer this, but I want very briefly to say what is important and new about Amendment No. 10 that he described.

It is the first time where third party intervention and arbitration which is agreed by the parties to be binding upon them has come before your Lordships. The previous amendment, Amendment No. 9A, was about a case where they had settled. In a sense the new amendment now before us deals with that again in a case where they settle the issue by agreement, but goes on to state that or, where they subsequently, agree jointly to refer the issue to conciliation, mediation or arbitration the result of which is agreed by them to be binding upon them". It is in that case that I adopt the words of my noble friend Lord Lea: "where the procedures are their property and they have agreed", except perhaps for tremendously difficult emergency situations which the Government could perfectly well draft. If they cannot, they must go outside and find some advisers who can. If they want to make exceptions to that, let them draft them. But otherwise, please, do not destroy the integrity of third party intervention voluntarily accepted by the parties with all the problems that may have for fire authorities.

My noble friend Lord McCarthy—I shall not repeat what he said—intimates that it may be a rare case where the fire authorities can agree if the Secretary of State objects. He gave very practical examples of cases where the employers may want to say, "No, the Secretary of State has got it wrong a bit. It's not quite the way to do it, and we agree with the union that you should do it some other way, or if we can't agree, we'll put that to arbitration". That is what Amendment No. 12 goes on to deal with. He really should consult further. First, in Amendment No. 10 we say that he should consult with the parties, and in Amendment No. 12 especially he has to consult with ACAS and then consult further before making any further proposals.

I cannot for the life of me see what the Government find to be wrong with that unless they wish to give themselves a power—it is nothing to do with when they want to use it—which is an authoritarian power, contrary to all the international conventions, which we have ratified. In another state, if you want to refer to European experience, the ratification would give rise to actions in the courts in those countries, but they cannot here, or at least I retract the word "cannot". They can do so here only with great difficulty. I do not want to put counsel in a future case at any disadvantage by my statements because it is quite possible that they can be challenged here.

But surely it cannot be the case that the Government want to have a power to intervene where fourth party assistance could resolve the matter except on some curious kick of authoritarian power, which they wish to acquire. I do not believe that the Government wish to acquire authoritarian power. What I am pleading for is some acceptance of at least the spirit of my noble friend's speech in moving Amendments Nos. 10 and 12, to come back and say, "No, we don't want to do that and we'll draft something that shows that we don't".

Lord Rooker

I have a couple of introductory remarks because this is a new part of the debate. I have to repeat the fact that it would be quite exceptional circumstances in which we had to operate the Bill. We make no bones about it. I have used the words that the Secretary of State would have to impose a solution to a dispute because he would consider that to be in the public interest. At that point there is no earthly reason why a third party should be involved. But, having said that, any idea that to reach that point arbitration, as an instrument of policy, is not available is absolute nonsense.

I also mentioned earlier, in response to the introductory point of the noble Lord, Lord Campbell of Alloway, about the difficulty of arbitrating on policy issues as opposed to the mechanics of a percentage pay increase or a date in which it shall be paid or phased in, and those kind of circumstances, that we took that to be extremely difficult for a third party to be involved in. Those are reasons why we do not think the Bill requires Amendments Nos. 10 and 11. But, of course, there is another one.

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 for conciliation. 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.

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.

As to the substance of Amendment No. 10, I hope that in some ways what I have said—there is nothing new about that—gives a degree of reassurance. But, in the event of the parties agreeing to seek arbitration, it would be extremely unlikely that the Secretary of State would want to intervene at that point to exercise his powers to fix or modify conditions of service if there was a realistic prospect that the parties could, by seeking arbitration, resolve their differences. Obviously, in theory it would be open to him to use his powers at any time.

There is a caveat, which is not unimportant but I have to say that no one has referred to it; that is, that in the event of two parties seeking independent arbitration over the terms of the agreement, the results of the arbitration should be applied only to the signatories to that agreement. It should not be open to the arbitrator to involve a third party coming to an arrangement between the two parties to the arrangement. For example, it could not be the case that the Government could be required by the arbitrator to fund the deal of 13th June. So, it could go to arbitration over the deal of the two parties to the agreement—they have signed the agreement—if they get as far as arbitration; I accept that there are other stages first. We accept that, and it is open to them to do that. I have said that if there was a likelihood of an agreement, it would be extremely unlikely for the Secretary of State to intervene. But it has to be said that it would be quite barmy to then ask a third party to pay for the arbitration of the two parties which were signatories to the agreement, the party being a person or body that is not signed up to the agreement in the first place.

That is a fairly normal process, I think. Otherwise, we are almost giving the arbitrator a blank cheque to sign for another party, whether that is local government, central government, or whatever. I do not think that that would be the norm for arbitration in any event. Therefore, arbitration is available if it is required in the circumstances of the agreement that was reached in June.

Amendment No. 12 raises different issues. Like Amendments Nos. 11 and 13, this involves the Secretary of State being asked to establish the arbitration machinery in different circumstances. Amendment No. 12 would require him to do so if the negotiating body or a member of the body notified the Secretary of State of a disagreement over the interpretation of an agreement between the two sides. As I have said, the constitution of the National Joint Council already provides for that. So, we think that Amendment No. 12 is unnecessary. In other words, the thrust behind Amendment No. 10 is already available during the process of bringing the agreement which led to the end of the dispute to a finality, with the dates that are set down there. So, in many ways we can accommodate that.

I also have to repeat, simply as background because now the White Paper has been published—clearly, it was not available at Second Reading—that this Bill does not attempt to cater for the long term, by definition. If it is not used in two years, it is not available. So, there is no sense in putting anything in this Bill that is designed to cater for the long term; it is to deal with specific and extreme situations. We are not setting up an arrangement that will last for ever.

That will come about in legislation—I cannot forecast when it will be—following the White Paper. I have no more idea of what will be in the Queen's Speech in the autumn than I suspect the Prime Minister has at the moment. We have seen a long list of bids for it, and there are always more bids than there are slots available. We always get overloaded, as we know, because of the inadequacy of the other place in scrutinising everything properly. However, the general points are covered in that, I hope in a positive way.

As to Amendment No. 33, which has been spoken to by my noble friend Lord Lea, there is nothing in the Bill which prevents the two sides from agreeing to make use of the facility or any other form of arbitration, mediation or conciliation; nothing at all. My noble friend Lord Lea in his remarks clarified what the amendment provides and in a spirit of—can I say conciliation? It is probably too strong a word because I am not trying to be conciliatory; I am trying to be honest and positive so that no one is ever going to say that I sugar coated what we are trying to do in this Bill. However, at the appropriate time, when we reach Amendment No. 33 on the Marshalled List, I shall recommend noble Lords to accept it and I will put it on the face of the Bill.

If at any time parliamentary counsel has another look at the amendment—at the moment he has not looked at it because, along with Nick Raynsford, we have decided to accept it and put it in the Bill when we reach that point. Clearly that will not be today, but if there is any tweaking of the odd comma or the odd word, parliamentary counsel might want to look at it—

Lord Wedderburn of Charlton

Ah, ah!

7.30 p.m.

Lord Rooker

Now, you see, immediately I am undermined. Immediately, what I have just said in good faith is not accepted. Immediately, I am thought to be lying, conniving and not telling the truth. That, I am not having. I am not having it. What I have just said—I will give way to my noble friend in a minute—is what I said. I am accepting the amendment word for word and I will recommend that it is put into the Bill word for word as we leave Committee.

Parliamentary counsel has not looked at it. Governments do not draft Bills; parliamentary counsel draft Bills and it is a different operation. If they look at it and there is a sentence or a word or a comma in question, I will come back on Report and explain. That is the only caveat I am putting on it. I am not seeking to undermine or qualify what I have said. So, the nods and winks from the other end that what I have just said is not true I do not accept.

Lord Wedderburn of Charlton

I hope that my noble friend the Minister will look at Hansard to see what he said. There was no suggestion that he was lying, conniving or in any way other than telling us what was going to happen. He said that the Government were going to accept the amendment, but perhaps I may say in parenthesis that this shows a very bad precedent of discussing an amendment before we come to it. I close the parenthesis there.

What I did when he said that the Government will accept this amendment was to try to turn in my notes to see what I was going to say about it when it came up. When he said, "Ah, but we'll change the wording", I realised that my notes might not be any use to me. That is all. So, I quite understand that when a government accept an amendment normally they have it looked at by the draftsmen, but since I said in my speech that I did not think that as it stands Amendment No. 33 adds anything to the Bill at all, obviously changes in wording will be absolutely fundamental.

When I say that it does not add anything to the Bill at all, I mean that it does not add anything which will affect the use of powers by the Secretary of State. Perhaps we can discuss Amendment No. 33 when we come to it and if there is going to be different wording, we shall of course have to wait for the Government either on Report or Third Reading and see what it is that they accept. I quite understand that. So I hope that my noble friend will observe the usual courtesies and not accuse people of saying that he lied on something—that is a word that does not usually appear in our proceedings—when nothing of the kind was further from one's mind.

Lord Rooker

What I said was not taken in good faith, from the noises I heard to my right. The minute I said, "I will ask parliamentary counsel to look at it just in case, because he hasn't done it at the moment", all of a sudden suspicion that I am not speaking the truth or that I am not operating in good faith came from the noises from my noble friend. So, I am not qualifying that.

When I arrived for work this morning, Amendments Nos. 10 to 13, 33 and 45 were in one group. At quarter past twelve today, they were all separated. So, do not start telling me about changes in the rules of this place. I am new here. My noble friend has been here for donkey's years. If he wants to work in a situation of anarchy, that is up to him. My noble friend was quite in order to speak to Amendment No. 33. When Amendment No. 33 is reached I do not intend to say anything else about it. I have indicated that I will recommend that it be accepted into the Bill. I have said everything I am going to say about it because anything else needs to wait until Report.

So, I am not going to repeat what I have said when we come to Amendment No. 33. My noble friend can simply beg to move formally and I shall recommend that it is accepted.

Lord Wedderburn of Charlton

My noble friend suggests that the groupings of amendments, which as I understand it were made by his own department, were there when he first saw the proposed groupings. What was changed, according to the rules and conventions of groupings, which are well set out in the Companion, was that the amendments in the name of myself and my noble friends were rearranged into the new list of groupings. There is not only nothing improper in that and something about which he can complain; it was done according to the normal rules—with the complete co-operation of my noble friend the Chief Whip and more particularly his staff who were most helpful—between 11 a.m. and 12.5 p.m. today.

So, I hope that he will take away his complaint about the way that groupings are done and reconsider them in the light of the enormous effort which the staff put in on these very complex matters which yet have to be debated on the Bill.

Lord Lea of Crondall

In the light of what has been said, I want to make a point of clarification. Noble Lords may wish to know that it is true that Amendments Nos. 10 and 33 were in the same group. Obviously, I had nothing to do with that; no one had anything to do with that apart from the normal processes. Then, at a very late stage there was this big change. All other people could have objected, made a counter-objection or another objection until the cows came home; there was no room for that sort of debate.

Lord Wedderburn of Charlton

I am sorry, but my noble friend really must understand that he could have gone to the officials in charge of groupings by 12 o'clock, which we did. He could have gone to say what he wanted done with his amendment. What we did was to say that we did not want our amendments debated in the same group as his amendments; that is all.

Baroness Gibson of Market Rasen

I was not going to intervene in this part of the proceedings but I want to make two comments. I do not think that wrangling between my noble friends—they are my noble friends—is helpful either during the debate or particularly at this time of night. I want to make one further comment. When my noble friend Lord Lea moved his amendment, I happened to listen carefully and I think that it will add something to the Bill.

Knowing my noble friend Lord Lea as I do, I cannot believe that he would move an amendment that would not be agreed by the union involved, or about which the union involved would not be happy.

Lord Wedderburn of Charlton


Baroness Gibson of Market Rasen

Therefore, I merely say that at this stage I cannot see that this debate should go on in the wrangling way that it is.

Lord McCarthy

I want to pour a little oil, if I can, but I have to say before I start that I have been in this House since 1968—1978 rather; it seems like 1968. When I was the spokesman for the party in opposition, the government arranged the amendments in the order that they suggested, but anybody who wanted to—even then it all stopped at twelve o'clock—could go along and see the appropriate officials and put down their amendments in the groupings that they wanted. As regards the sovereignty of the individuals who write amendments to say how they want to debate them, I do not know when it started in this House but it has been there a very, very, very long time. And, of course, it is all right because the Chairman does not choose which amendments to take. Any tom fool can write an amendment in this House and it goes on the Marshalled List. That is the way it has always been done. Of course, not everybody knows about it because not everybody moves amendments. Some people move only one amendment and it does not matter much to them where it goes in, but it matters to us. It has always mattered to us. We have always taken—I did when I was the spokesman for the party when in opposition—advantage of the principle of the sovereignty of the order and grouping of amendments. That is a fact.

I want to be placatory. I want to be helpful. I am very, very pleased that the Minister has made this concession. It is the first one we have had. I hope that it encourages him to make a lot more. I am very glad that the noble Lord, Lord Lea, tabled the measure because if it had not been tabled we would not have got it.

But, on the other hand, I agree with what the noble Lord, Lord Lea, said and I hope this heralds a change. I refer to what the noble Lord, Lord Lea, said about the attitude of this Government towards third-party dispute resolution. Indeed, the Prime Minister with his commendable candour has said on several occasions that he does not believe in arbitration. I do not think that he has quite explained why. Perhaps he is changing; I do not know. But the Government, although they have used ACAS—you cannot live in this world without using ACAS—do not encourage that and they did not encourage it in the dispute we are discussing. As the Minister says, there is a provision in the existing procedures in the Fire Service which allows for conciliation, mediation and arbitration binding provisions. It comes from the report of the inquiry into the machinery for determining fire-fighters' conditions of service. They are subject to review. They are being renegotiated now.

I have not asked the parties why they did not invoke that procedure. I think that the union probably did not invoke it because it preferred a strike as it thought that it could get further with the industrial dispute, which it is perfectly entitled to do. It has a perfect right to take industrial action and not to use arbitration. But it is ex parte. The employers could have done that if they had wanted to. But that is not what employers tend to do these days. Third party dispute resolution is at a discount. It is going to be more at a discount if, frankly, it is given a certain name, and its name is applied to what we have in this Bill, because, as I said at Second Reading, this Bill uses the sacred name of arbitration to do something which is an imposed settlement. It would have been better if the Government had thought of another name, but they did not.

I hope that we shall be glad that we have this advance. I thank the Minister for the advance. I hope that it will be one of many more to come. With that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

7.45 p.m.

Lord Evans of Temple Guiting

We finish at eight o'clock and we are now looking at Amendments Nos. 11 and 13. We will start these and if we finish before eight o'clock, fine. If not, we must break off at eight.

Lord McCarthy

Is the noble Lord asking me a question or is he telling me what he is going to do? I would like to stop now because, frankly, we shall not finish the group. But if the noble Lord wants to insist that we go on, of course we shall go on.

Baroness Turner of Camden

I thought we used to finish at half past seven.

Lord McCarthy

Yes, I thought we finished at half past seven—or I thought that we finished our business at half past seven. I am sure I am right in saying that if were following previous precedent, we would finish now.

Lord Rooker

With respect, we have the agreement of the Hansard writers. We have the workers to consider. We are going to eight o'clock. At eight o'clock we will finish wherever we are.

Lord Evans of Temple Guiting

We have the approval of the usual channels to go to eight o'clock. In the rules and regulations of the Grand Committee, there is provision to go beyond 7.30.

Baroness Hanham

I have been reluctant all afternoon to cause any further grief to the proceedings—not a vicarious pleasure in watching them. My only observation is that it seems to be late to start another grouping. It is almost ten minutes to eight. With your Lordships' agreement, I suggest that we ought to stop now and start again another day.

Lord Evans of Temple Guiting

With all due respect, we have an agreement with the usual channels to finish at eight. If we are part way through an amendment, so be it. If we start Amendment No. 11, we will finish exactly at eight o'clock.

Baroness Hanham

The usual channels on my side—partly me and partly the Chief Whip—agreed to go to eight o'clock if that was appropriate in terms of the groupings. It seems to me that it is not as we have finished the grouping. I agreed to that. I was happy if we had started a group we would finish, but if not we would not start another big group of amendments at this late hour, up to eight o'clock.

Lord Rooker

I say to my noble friends and colleagues that we are in the same boat on Monday. This Bill is going through this House. I do not care how long it takes. The policy is that the Bill is going through, amended or otherwise, whatever. And the fact of the matter is that what will happen on Monday, or Tuesday, or Wednesday, or Thursday—however long we take in Grand Committee—we will go through the list. It does not make sense to waste the time that the Hansard writers have made available to us.

Lord McCarthy moved Amendment No. 11:

Page 1, line 24, at end insert— (3B) No order shall be made under this section pursuant to any proposals made by him if the Secretary of State has been notified that one of the members of the negotiating body requests him to refer a disagreement with his proposals to an independent person or body for mediation, conciliation or arbitration with a view to resolving the disagreement and that person or body has issued advice or a report proposing terms different from the proposals, which terms have been accepted by the members. (3C) Where the Secretary of State is notified under subsection (3B), he shall consult the Advisory Conciliation and Arbitration Service (ACAS) and with the agreement of the members of the negotiating body appoint an appropriate person or body for the purpose of mediation, conciliation or arbitration as appropriate. (3D) Where the appropriate person or body gives advice or makes a report which is accepted by the members of the body, the Secretary of State shall take it into account before he publishes any further proposals for an order.

The noble Lord said: Amendment No. 11 is grouped with Amendment No. 13, so I shall speak to both of them—at least for part of the time. They are different from the previous amendments because they deal with new agreements. Nevertheless, they deal with them in a related way. And because they are new agreements, it does not seem to me—though I am getting a little more ambitious, so perhaps I have made a mistake—that I would be far forward if I made them as firm and restrictive on the Ministers as the two agreements relating to disputes of application. So they are not quite the same.

Amendment No. 11 in effect provides that the Minister cannot use his order-making power if he is asked to respond to a request for third-party dispute resolution. In fact, he must facilitate a method of third-party dispute resolution and wait for the report from the parties on that dispute and on his position, and publish that.

It may produce a solution or it may not, but as the amendment states, the body shall make a report and the Secretary of State shall consider it before he publishes any further proposals for an order.

Amendment No. 13 is a little more complicated. The Secretary of State submits his proposals. This time the initiative comes from the parties, who are opposed and ask for third-party dispute resolution. Again, there is a time ban, but if the parties co-operate, the Secretary of State proposals are withdrawn until they know the results of the intervention—conciliation, mediation or arbitration. The outcome and the contact report is considered by the parties and by the Secretary of State.

But of course, this time the Secretary of State can disagree, even if the parties come to an agreement or say that they will accept whatever has happened in arbitration or mediation. The Secretary of State can disagree and go on and impose his order. The provisions are therefore a little more permissive.

The argument I want to make is that I believe that the Government misunderstand the limitations of such suggestions. In the debate, the Minister has frequently said that this, that or the other is not appropriate by deciding or mediating by a third party. It is said that it is too complicated. That is to misunderstand what the process is about.

The third party listens. They do not necessarily consider that they know as much as the parties. They do not consider that they have a solution. They listen; they cross-question; they examine. The object of the exercise is to find whether a form of words can be found which the parties will agree.

As I have said previously, it was so evident—and it would certainly be evident in a period of third-part dispute resolution—that the Government would be there. Perhaps they would be a ghost at the bargaining table, but I would have thought that if there was anything of significance or importance the Government would want to be inside the negotiations. Indeed, I believe that on major disputes, it is probably better that the Government should be inside as it is their money. There is no reason why they should not be if there is an independent person who is going to assess the validity of their arguments. That is the difference.

So any complexities or difficulties, and anything that cannot be put into an agreement because they are subject to further discussion and debate, will be accommodated in the division. That is simple and happens every time. There is an important historical parallel which the Government should consider if they continue to take the view which I believe they take and practice shows they take towards third-party dispute resolution.

It is driven into a system of imposing settlements on trade unions and working people because they have turned away from the only way of providing an independent assessment of validity of their arguments, which is third-party dispute resolution. That is what they did in this dispute. There was no independent assessment of the dispute. No one was chosen by both sides to assess the dispute and was given agreed terms of reference. I make no criticism of the Bain report—it was not its problem; it was given an impossible task.

When there was continued disagreement, no attempt was made to bring in any independent assessment. The Government finally achieved an agreement, I think, by threatening to enforce it through the Bill. That is not fair or equitable and it is not what has been done by this Government—I am sorry I will correct that; by this party—in the past.

The last time this party got into this situation, it established the Clegg comparability commission. It established it at a bad time—immediately after the disastrous winter of discontent. It was my opinion at the time, and it remains my opinion, that if the Clegg commission had been in situ six months earlier, there would not have been anything like the winter of discontent. It would have been even better if we had had a realistic incomes policy, but we will not go into that.

The fact is that the Clegg commission, in a matter of six or nine months, dealt with some 2.5 million public servants, mostly non-trading. Professor Clegg, in his final report, said that the great majority of workers who came before the commission accepted what the commission said, although they had not been bound in advance. That is what usually happens, otherwise they would not go. They asked to go to the commission, and when they reached the settlement, they accepted it.

They often required a strike threat to get there, but they got there—and when they got there, they settled. The results which were achieved by the Clegg commission were modest. And in any public interest evaluation, they were justified. When Professor Clegg's commission was dismantled and disbanded by Margaret Thatcher, he said—and he was wrong—"You will have to come back to it". But she never came back to it.

What we had instead was a series of major public-sector disputes between the Government of the day and the trade union movement. Unless there is some effective alternative, some independent assessment, I warn this Government that something like that will happen ultimately. It should happen and it need not happen, but they have to embrace the principle of third-party dispute resolution if they are to find their way out. I beg to move.

Baroness Turner of Camden

I want briefly to support my noble friend in relation to these two amendments. For a number of years, I was a member of the Central Arbitration Committee, and we dealt with a large number of disputes during my time in office. I am a supporter of these methods of dealing with dispute resolution. If you are interested in dispute resolution rather than in any kind of conflict, third-party arbitration is the way forward. I am glad to learn from the Minister that he accepts that in principle because he has accepted the principle of the amendment that has been spoken to by my noble friend Lord Lea.

These amendments will spell it out in more detail and will involve the Advisory Conciliation and Arbitration Service, which has lengthy experience in dealing with these matters. I feel sure that if something of that kind could be written into the Bill, it would enormously help to make it more acceptable.

During the course of responding to a previous amendment, the Minister said that the Bill is intended to deal with specific and extreme situations and that it is an emergency measure. The point about that is that the Bill does not refer to specific or extreme situations. Therefore, we need to ensure that something to that effect is written into the Bill so that everyone understands that that is its purpose.

Lord Rooker

Can I just say—

Lord McCarthy

On a point of order, we are on eight o'clock.

Lord Rooker

No, it is 59 minutes past. We are going to eight o'clock. We are time serving here. My noble friend has brought it upon himself.

In responding to my noble friend. I agree with what he said about the success of the Clegg report and the sadness that in the event the commission was disbanded before it could show the fruition of its efforts. I shall deal with these two amendments in due course and with one particular aspect of them. In some ways, only the one aspect of the central negotiating body needs to be dealt with. That goes to the heart of the Bill's purpose—that is, that the Secretary of State should have the power to draw a line under any disputes. We are missing that in our debate. Ultimately, if a dispute gets to that stage, the Secretary of State must be in a position to draw a line in order that it is not dragged out or does not go into further procedures. Arbitration is already provided for.

As it is now eight o'clock, I suggest that this is a convenient moment for the Committee to adjourn until 3.30 p.m. next Monday.

The Committee adjourned at eight o'clock.