Grand Committee Report of 7 July 2003

Official Report of the Grand Committee on the

  Fire Services Bill
  (Second Day)
  Monday, 7th July 2003
  The Committee met at half past three of the clock.
  [The Deputy Chairman of Committees (Lord Lyell) in the Chair.]
  The Deputy Chairman of Committees (Lord Lyell): I remind Members of the Committee that if there is a Division in the Chamber while we are sitting, we shall adjourn for 10 minutes. Otherwise, we are on Amendment No. 11 in the name of the noble Lord, Lord McCarthy. I remind Members of the Committee that the noble Lord has already spoken to and moved the amendment and that we are continuing a discussion.
  Debate on Clause 1, Amendment No. 11, resumed.
  Lord McCarthy: For clarification—we had rather confusing statements previously—are we going on until 8 o'clock or 7.30 as the end of business? Will that be a general rule in future in the House or does it apply just to this Bill? We were told last time that we would be going on until,
  "Monday, or Tuesday, or Wednesday, or Thursday".—[Official Report, 3/7/03; col. GC 289.]
  until we got the Bill finished. Was that true or was it just a joke? Will we finish merely the Committee stage or will we go straight into the Report stage? Some clarification appears to be in order.
  The Minister of State, Office of the Deputy Prime (Lord Rooker): I cannot give any clarification. This is a government Bill, the other House passed it and this House is due to consider, revise, assess and analyse it. At the end of the day, the time will necessarily be made available for the House to come to a conclusion on it. I cannot say how many days or exactly which days; I am not the business manager. The general position is that this is a government Bill and we will proceed with it through the House until we reach a conclusion. On when we might finish tonight, frankly, I will decide on the basis of progress at the appropriate time to move the resolution, and I shall do so having had discussions with my colleagues representing the opposition parties.
  Lord Wedderburn of Charlton: With leave, may I clarify a point in the question of the noble Lord, Lord McCarthy? I appreciate that it was put to the Chair and that it is not the job of the Chair to answer the question. I thought that that was the job of the Whip
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  who is in charge of business, but the question was answered by the Minister. I have been in a number of Grand Committees and I attended one Grand Committee that went on for weeks and was a matter of very strong government policy. The Whips who were in charge of the business observed—I have checked on this with the Whips—the normal rule, which is that a Grand Committee rises at 7.30—adjourns is a better phrase—or at the end of business that has been taken at 7.30. That is what the noble Baroness on the Conservative Benches said last time was her understanding. I have been told, and I believe that this has been put to the usual channels—although the extent to which they agreed it was obscure when I read Hansard last time—that this is an abnormal Grand Committee, and the noble Lord the Minister has now said that he is in charge of how long we sit. I thought that the House and the Committee were in charge of the normal conventions. If our rules are to be changed by ministerial order, I suppose that there is very little that the Committee can do about it. I wanted to be sure that that is what the position was.
  Lord Evans of Temple Guiting: Perhaps I can assist the noble Lord, Lord Wedderburn, by reading a note from the business manager. He says that the noble Lord,
  "is right to say that this would be a departure from usual practice, which is to rise around 7.30 p.m.
  "He is wrong if he asserts that there is anything improper about this. It is clearly allowed for in the attached note, embodying the usual channels conventions about the sitting times of Grand Committees. There are no 'rules"'.
  If I may, I shall read a relevant passage from the note. It states that although the practice in the 2002 Session has been to rise at 7.30 p.m.,
  "there have been exceptions, presumably by agreement…Grand Committee seems normally to adjourn around 7.30 p.m., and I gather that Hansard would appreciate an undertaking not to sit later than 8 p.m. if this can be avoided. I imagine that morning sittings will be unusual; but I note that there was one in this Session, on 11 April".
  Lord Wedderburn of Charlton: I am very grateful to my noble friend for knowledge of that document. I do not know whether the document is available to all of us. We would be very grateful if a copy of it could be placed in the Printed Paper Office to enable us to understand the position. However, is it possible as a matter of courtesy for those who are in charge of the business to give us notice before we start of when they intend to press business beyond 7.30 p.m.?
  Lord Rooker: No.
  Lord Wedderburn of Charlton: I am asking the Whip who has quoted the position.
  Lord Evans of Temple Guiting: The Minister and I speak with the same voice. He has set out the tradition. He will make a decision on when we rise, whether

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  7.30 or 8 p.m., based on a discussion with me and the progress of business this afternoon. I hope that that is clear.
  Lord McCarthy: The Minister cannot tell us before he decides, but surely he can tell us when he does decide.
  Lord Evans of Temple Guiting: When the noble Lord, Lord Rooker, decides, he will tell the Committee.
  Lord Rooker: I continue where I left off in our sitting last Thursday, at col. 292 of the Official Report. I had made a preliminary observation—indeed, I agreed with my noble friend Lord McCarthy—about the success of the Clegg report, but I had not said much about Amendments Nos. 11 and 13. I should like to concentrate on one specific aspect of the amendments.
  The amendments require the Secretary of State to establish negotiating machinery if the negotiating body or a member of the body disagrees with the Secretary of State's proposals to make an order fixing or modifying the conditions of service. Of course that goes to the heart of the Bill's purpose—that the Secretary of State should have the power to draw a line under any dispute. That is what the whole Bill is about, and we would seek to disagree and oppose anything that cuts across that.
  As I made clear, we would consider using these powers in the Bill only if we thought that there was no realistic prospect of agreement being reached voluntarily. As 1 said in previous debates, it is open for the parties concerned to use the voluntary procedure and the arbitration procedure applied for in their own agreement. So it is difficult to imagine that even the best arbitrator could seek to reconcile the differences between two parties in circumstances where they cannot agree voluntarily. It would be quite wrong to expect them to do so.
  We had an independent review of the Fire Service carried out last year by George Bain and his colleagues. The conclusions of that report were widely accepted, and the Government responded to the conclusions in the White Paper published last week. I would also remind noble Lords that, despite being invited to contribute to the review, the Fire Brigades Union declined to do so. That was its free choice; no one was forcing it to participate. However, the result is that its view was missing in a sense from the deliberations.
  Against that background, inserting a requirement for arbitration on proposals by the Secretary of State to end the dispute—proposals which would be made only in the event of what one assumes would be irreconcilable differences between the two parties—seems a complete and abject waste of time. That is particularly the case when it is open to the negotiating body to make a report to the Secretary of State and when it is open to the parties concerned to go to arbitration at an early stage. Therefore, the idea that the parties could not go to arbitration is nonsense. It is provided for in their own agreement.
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  Again I remind noble Lords that the Bill does not attempt to write the rules for the long term. It is hoped that the Bill will never be used, and it will be consigned to the dustbin after two years if it is not used. It is designed to deal with a specific and extreme situation. We are not dealing with setting up machinery for the future; presumably another Bill will be brought forward to deal with that. I do not know when that will be but, as a result of the White Paper, the Government will propose legislation when a parliamentary opportunity arises.
  Therefore, it is hoped that there will be plenty of opportunities to debate, outside the confines of the recent dispute, the future of the Fire Service, its negotiating position and the negotiating machinery. The recent dispute may have been settled but there are still procedures to be followed through as a result of the agreement reached by the two parties. Therefore, in that respect, we do not see that any useful purpose will be served by incorporating Amendments Nos. 11 and 13 in the Bill.
  Lord Wedderburn of Charlton: Would it be convenient for the Minister to take a question which arises exactly from what he has just said? As 1 understand it, the Government's position is that, as he said—I am trying to get right what he said—the Bill is an interim measure and will be consigned to the dustbin if it is not used within two years and there will be another Bill for the long term setting out policy on the Fire Service. Does it follow from that that the Government do not wish to take power in the interim measure which could be used to pre-empt anything that might arise for the long term? I am not talking about present intentions; I am talking about legislative power and what goes on to the statute book.
  Lord Rooker: I do not fully understand my noble friend's question. The fact is that the Bill is specific to the issue that we have already debated. There is no beating about the bush—the Bill is time-limited for two years, assuming that the Bill passes into law with its present sunset clause. It does not assume, prevent or pre-empt anything that might appear in future legislation as a result of the White Paper. I do not know—I suspect that, at this stage, even the Government do not know—when legislation will follow the White Paper. We are some considerable time away from the next Session and I have no idea what will be in the next Queen's Speech. Whether such legislation will be included in the business of the next Session or the Session after that, I cannot say.
  However, the two things are wholly disconnected. This Bill is for a specific purpose and for a specific time period. It is hoped that it will never have to be used. It does not pre-empt anything. Following the proposals in the White Paper, we shall start with a new Bill, effectively from a clean sheet of paper. I hope that that satisfies my noble friend because there is no hidden agenda of connection between this Bill and any Bill

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  that might be introduced in the future. This is a discrete Bill for a specific purpose and for a specific period of time.
  Lord Wedderburn of Charlton: I am sorry but I want to say one word about that. No one suggested that there was a hidden agenda. I do wish that the Minister would not repeat his style of last week by suggesting that we have said things to him which we have not said. I asked whether the Bill should not contain powers that might, if used—perhaps by a Secretary of State who is not the present Secretary of State—within the two years pre-empt the longer-term policy. I am surprised that my noble friend did not understand the question. I do not believe that I have expressed the matter quite so well but I have tried to summarise it. My noble friend may not want to answer it further now as he may have said everything that he wants to say. But there is no question of hidden agendas.
  Lord Rooker: I have nothing further to add. It is plain as a pikestaff and should be crystal clear that this is a one-off Bill for a specific time period. If it were activated, that would be done only in the most extreme of circumstances. If it needs to be activated, we shall do so, but we hope that we do not have to do so.
  3.45 p.m.
  Lord McCarthy: I have three points to make—two of which are in reply to the points made by my noble friend. It seems to me that his first point would rule out third party dispute resolution in all circumstances, which makes it difficult to understand why he thought that Professor Clegg did so well. He said. I think, that it would not work in circumstances in which the parties could not agree—but it does not come into operation unless the parties disagree. If conciliation, mediation and arbitration worked only when the parties agreed, we could pack up ACAS. The whole point about TPDR is that it attempts to do something which the parties at this moment in time have demonstrated they cannot do themselves—that is, agree.
  The great majority of the references—in fact, probably all, but I have not checked the data—to the Comparability Commission were where the parties disagreed. If they had not disagreed we would not have needed the Comparability Commission. I believed that my noble friend agreed when I said that if we had had the commission in place some six or nine months earlier we might not have had the winter of discontent. But it was delayed and, when it was in position, it could not settle all disputes. So it is silly to say that one does not want TPDR unless the parties are agreed.
  Secondly, my amendment may be unclear. My noble friend's second point was that he could not accept it because it stopped the Secretary of State having the final word. It does not do that. One of my earlier amendments in regard to the application and interpretation of agreements did that—it was most extreme—and I attempted to explain how third party dispute resolution could be used, particularly on the application of agreements, because it would close
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  down the issue and the Secretary of State would be unable to intervene. But this amendment does not do that.
  The two amendments we are discussing provide that the Secretary of State has to take into account what has been produced by third party dispute resolution. Anyway, one could use different words. That is why we made a fuss at Second Reading. We said that the Bill can be amended but it cannot be cured in Committee. Different words could be used—they may be better than the ones I have used—but I do not wish to introduce an amendment into the debate which takes away the right of the Secretary of State to have the final word. All that the amendments seek to do is to enable the Secretary of State—in one amendment he can do it under his own initiative—to seek an independent assessment.
  An independent assessment, in terms that ACAS would recognise, is quite precise—the parties together decide the arbitrator; the parties together decide the terms of reference. If those elements are not there, it is not independent arbitration. That is what we are seeking to put into the Bill for the future.
  This brings me to my third point. I do not know whether I have much chance of doing so but I am trying—as I said I was trying to do on the previous occasion—to pour a little oil. The trouble for the Government in this Grand Committee—they have not said it but I believe it lies behind their attitude—is that they believe we are filibustering. In the Labour movement, many people filibuster all the time. I have done a lot of filibustering in my life. But you filibuster when you are waiting for your majority to arrive. Usually you have got a few Trots and you hope that if you sit there for long enough, and bore people for long enough, some people will come out of the pub and make your majority. That is filibustering.
  The Government know very well that we have no majority. They have the power; they have the authority; they will get their Bill through. The only thing they have not got is the best of the argument. They have got everything else. What is the point of filibustering?
  We are doing this because we believe that the Bill will harm the Government, harm the trade unions and harm the Fire Service. We thought about this when the previous Bill on industrial relations was introduced last year. We tried last year—much as we are trying this year—to explain that the Government had got things wrong and, on one particular occasion, to argue that the Government had got the law quite wrong. In the end, the Minister in charge of the Bill, the noble Lord, Lord Sainsbury, went away and found that we were right. Like the gentleman he is, he removed the clause. We do not expect anything as grand as that this time, but that is why we are doing what we are doing. We are not filibustering; we are attempting to explain. Obviously we are not succeeding in explaining. We shall go on attempting to explain but, in the meantime, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendments Nos. 12 to 14 not moved.]
  Baroness Turner of Camdenmoved Amendment No. 15:
  Page 2, line 1, at end insert "or disposal"
  The noble Baroness said: In moving Amendment No. 15, I shall speak also to Amendments Nos. 16 and 17, with which it is grouped. The amendments deal to some extent with issues that have already been debated, as they are concerned with the consultation that the Secretary of State must undertake before making an order containing a direction about the use of property or facilities. However, Amendment No. 15 is slightly different. The clause does not include the word "disposal", although the disposal of property or facilities is specifically referred to in subsection (1)(b).
  Is there some reason why there must be consultation about the use of property or facilities with people who, in the opinion of the Secretary of State, are likely to be affected but whom he does not need to consult about disposal? That would seem rather odd, as disposal would clearly affect a wide range of people—not only Fire Service members but representatives of the local community, notably local authorities.
  Incidentally, the present wording gives the Secretary of State the duty to consult, but only those who in his opinion are likely to be affected. I suppose that it would be open to him to decide that, in his opinion, no one at all need be consulted. However, that is not part of the amendment, which is concerned with why it is necessary to leave out the word "disposal" when disposal of property or facilities is specifically referred to in subsection (1)(b). The amendment is probing, and I should be grateful if the Minister would respond to that point. I beg to move.
  Lord Evans of Temple Guiting: My noble friend has spotted that a word is missing. We are happy to accept the amendment because it was certainly not our intention to leave out the word. I hope she will understand that we have to check the point with the parliamentary draftsmen, but we are sure that the amendment can be agreed.
  Baroness Turner of Camden: I am very grateful.
  On Question, amendment agreed to.
  [Amendments Nos. 16 to 19 not moved.]
  Lord Wedderburn of Charltonmoved Amendment No. 19A:s
  Page 2, line 6, leave out subsection (5).
  The noble Lord said: The amendment is a request for an explanation as to why retrospective powers are needed. Thus far, the debates have left my noble friends and me in some perplexity about that point. Retrospective powers are always questioned, of course, whichever government they come from. They need very careful and special explanation.
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  I asked someone in the Fire Service what he thought a retrospective order would be about. He told me, "Oh, it'll be to approve pay rises in the past". I considered that to be a little unlikely, and I do not know that he had much ground for it. Of course, retrospective powers are qualified to the extent of subsection (5)(a) to (d), which allows there to be retrospective effects to fix or modify pay or allowances, and of course there is different provision for different cases, provision for exemptions, and incidental and supplemental provisions. Incidental, supplemental, consequential and transitional provisions always cause a little trouble with retrospective powers.
  What exactly are the relevant types of case? The Government must have some very clear ideas or they would not have included the highly unusual power to make retrospective provision. What is one to say if asked for advice, by either employers or members of the fire brigade, as to what their position is if retrospective provision is made modifying pay and allowances, and if something has been done in the past on either side that infringes the new rights?
  As I understand it, a retrospective order would alter the rights as from the date of retrospection; that is, if we made an order today that is effective from last Wednesday, from last Wednesday those are the rights and duties. If something is done between last Wednesday and now, someone is in breach of the legal provision of the order. Is that right in this case? If so, what advice is being given—or will be given, if it is appropriate—about acts that will infringe the new order that retrospectively changes rights and duties from last Wednesday?
  All retrospective provisions have that problem, and all governments are very careful to explain exactly what they mean and what the effect is of a retrospective statute or order in terms of the rights and duties of the citizens affected. We tabled the amendment to leave out subsection (5) because, on the explanations thus far, questions of that kind have not been answered. I beg to move.
  4 p.m.
  Lord Campbell of Alloway: I gather that this is in every sense a probing amendment and I seek the help of the noble Lord to construe it. I understand that subsection (5)(a) is related to orders made under Clause 1(1)(a), while subsections (5)(b), (c) and (d) relate to orders made under Clause 1(1)(b). If that is right then the retrospective provision relates only to subsection (5)(a) and not to subsections (5)(b), (c) and (d). But that does entirely clear the hurdle of inquiry because it leaves the question of whether it is or is not proposed that, with retrospective effect, one could reduce wages by order. If it is not, then that ought to be made plain. At present that is left wide open.
  I ask the question because this part of the Bill would remain under amendments to Clause 1 which I am about to table for consideration on Report, so I am concerned about it. I ask the noble Lord if he could deal with my query.
  Baroness Turner of Camden: Perhaps I may raise a rather similar point. The subsection we are seeking to delete would remove the power,
  "to make provision with retrospective effect fixing or modifying the pay or allowances of fire brigade members".
  Yet subsection (6) appears to negate subsection (5)(a) with regard to retrospective provision, since an order made under that subsection,
  "does not include power retrospectively to reduce the pay and allowances payable to a person".
  I am very glad to see that set out in the Bill, but it seems to negate what is set out in subsection (5)(a). I say that because "modifying" pay or allowances could of course involve making reductions.
  It would be sensible to redraft the subsection in order to come to terms with subsection (6), which I welcome.
  Lord Rooker: For the avoidance of doubt, to "modify" means to increase. Since subsection (6) makes it clear that pay and allowances may not retrospectively be reduced, then to modify must mean to increase. There is no problem here in terms of probing the intent of subsections (5) and (6). Subsection (6) is declaratory, simply for the avoidance of any doubt, and serves to make it clear that we are not taking any powers to reduce income. So to modify would mean to increase.
  Subsection (6) is a straightforward, standard provision and is not innovative in any way. It means that, as set out in subsection (5)(a), (b), (c) and (d) that the orders refer to retrospective pay and allowances; that is, to modify—to increase—elements that may be uncertain, such as dates and times which depend on when the legislation is enacted, thus triggering changes that will need to be made. An order may necessarily include increases from an earlier date, but it would not include reductions. This Bill is not about reductions in pay.
  In effect, we need the power because if it were not provided for, the Secretary of State might have to make a whole series of different orders if he wanted to give slightly different directions to different fire authorities or groups of authorities—because of the way the fire service works. Some authorities are county authorities, while some are joint authorities. Similarly, the provision is needed if pay award increases are different for different groups of fire brigade members. If we lost the power set out in subsection (5), it would create massive uncertainty and doubt over what the Secretary of State could and could not do. The subsection sets it out clearly: the Secretary of State cannot reduce pay, but he can make changes in one order that would cover many fire brigades, groups of fire brigades or groups of workers. If the power were not included, then I suspect that there would be doubt and uncertainty, leading to my learned friends having a field day in the courts and thus further delaying the increases in prospect.
  I can tell noble Lords that this is a standard provision. Having said that, I do not have to hand a previous Act with which to compare it, but I am
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  assured that it is a standard provision. There is no intention to use these powers to reduce the pay of those involved in the fire service, as subsection (6) makes abundantly clear.
  Lord Campbell of Alloway: While accepting the noble Lord's explanation about different groups and the difficulties that could arise, if to "modify" really means to increase, I wonder whether he could ask the parliamentary draftsman if there is any fundamental objection to stating "increasing the pay and allowances" rather than "modifying" them. Although I fully understand the response given by the noble Lord, Lord Rooker, with respect, it does not quite justify the tension of the word "modify" when to modify in fact means to increase. I hope that the noble Lord takes my point.
  Lord Rooker: I almost said in my first response that it is a fact that we are not talking about increases, although "modifying" by and large will mean increases. We are not about to decrease pay. On the other hand, modifying provisions for different groups of workers means that some may stay the same while others receive increases, although it may be argued that they should all stay the same. I suspect that that is why the parliamentary draftsman has used two subsections to make the point that, while the flexibility is provided in subsection (5), the restraint—for the avoidance of any doubt and to make it absolutely clear that the Secretary of State does not wish to exercise the power retrospectively to reduce pay and allowances to a person—is provided in subsection (6). I suspect that that is why the provisions have been drafted in this manner.
  Subsection (5) goes much wider than subsection (6), which concerns only pay. As I have already made clear, the provisions may vary for different groups of fire brigades and for different groups of workers. Not everyone does the same job and therefore the pay rises may or may not be the same. The functions of subsections (5) and (6) are wholly different. Subsection (6) provides a restraint, as it were, on any reduction of pay and allowances.
  Lord Campbell of Alloway: I am sure that the noble Lord will accept that subsection (6) relates back to subsection (5)(a) and not to (b), (c) and (d).
  Lord Rooker: Yes. Subsection (6) refers to the pay element, which is considered only in subsection (5)(a). The remaining paragraphs relate to other matters in an order that the Secretary of State may make. Those matters would not be related to pay or allowances.
  Lord Wedderburn of Charlton: I am sure that Members of the Committee are grateful to my noble friend at the Dispatch Box for his full explanation. In the light of it, obviously there is no possible ground for pressing what is essentially a probing amendment.
  However, while I make no criticism, in view of what he has said, I wonder whether it might be useful as a belt-and-braces exercise and so as not to give a false impression—which the present wording has obviously

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  been given to many noble Lords—to point out that subsection (5)(a) could begin by referring to the only case to which this retrospective power is to apply; that is, the case of an increase. While it may include modifications associated with relativities, I understand that it would apply only to increases. As it stands "fixing or modifying" alerts people to a problem which is only partially explained when it is considered along with subsection (6). That subsection then makes it clear that there is no power retrospectively to reduce.
  This query shows how sensible is consultation with the workers because it appears that my friend in the fire brigade got it absolutely right. He said that this applies only to retrospective increases, and his understanding appears to be more or less correct. But there are other parts of the Bill which I have discussed with him on which perhaps there is a need for greater explanation. We shall reach those in due course.
  However, in view of the full explanation given by my noble friend, and with only a humble suggestion that perhaps the wording in subsection (5)(a) might be looked at again, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Lord McCarthymoved Amendment No. 20:
  Page 2, line 15, at end insert—
  "(5A) No order made under this section shall—

  (a) determine or modify the composition of a negotiating body which negotiates conditions of service of members of a fire brigade, or specify who shall act as representatives of such members, or who shall be an officer or chairman of any such body;

  (b) not conflict in any other way with the independence or right of free organisation of an independent trade union representing members of a fire brigade, or the rights of those members to choose their representatives in full freedom, as expressed in any Convention of the International Labour Organisation which has been ratified by the United Kingdom."

  The noble Lord said: This amendment is a little complicated. First I should draw the attention of noble Lords to the words:
  "No order made under this section shall—
  determine or modify the composition of a negotiating body which negotiates conditions of service of members of a fire brigade, or specify who shall act as representatives of such members, or who shall be an officer or chairman of any such body".
  Those with experience of industrial relations might say, "Well, of course not. Who could possibly suggest that? It is a matter for the parties involved". The amendment continues by stating that it shall,
  "not conflict in any other way with the independence or right of free organisation of an independent trade union representing members of a fire brigade, or the rights of those members to choose their representatives in full freedom, as expressed in any Convention of the International Labour Organisation which has been ratified by the United Kingdom".
  We are trying to protect the rights of the recognized Fire Brigades Union—this Bill affects only one union and one bargaining unit—to decide who represents it on the machinery. Especially, and this is what makes it rather urgent, in the light of the proposed review of the
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  National Joint Council and the disputes procedures. The agreement signed between the parties—the unions and the employers—which settled this dispute stated that the National Joint Council will review the organisation of the procedure for dealing with other and local disputes by 31st October.
  So it is down to a review of the whole machinery. The current machinery is the result of Professor Frank Burchill's inquiry of March 2000, especially the disputes procedure. It provides a considerable number of different levels from the normal situation and a form of ex parte arbitration. As has been said several times in our debates, this procedure was not particularly useful in the course of the dispute. Both sides complained about it. One of the things the parties agreed is that it shall be reviewed. The National Joint Council will do it by next October. That is a very large task.
  However, the Secretary of State has pre-empted this discussion. In his White Paper, Our Fire and Rescue Service, he tells us what he thinks should take the place of this procedure. He wants to see a very widespread change. On page 52, paragraph 7.13, he states:
  "We also agree with the Independent Review that a new negotiating body should involve representatives of the Retained Firefighters Union, the Fire Officers Association, and the Association of Principal Fire Officers".
  That is changing the workers' side.
  "We see no prospect"—
  he says, although negotiations as far as I know have not yet started—
  "of such changes being made by agreement".
  I know of no example, in advance of negotiations, of a person who is really the supremo on the employers' side making a statement of that kind.
  "That is why we intend to specify who should be involved. We envisage three separate negotiating bodies".
  and he then sets them out. But what follows is the really remarkable statement. Again, although I have tried the literature, I must say that I have no knowledge at all of anyone ever saying this on the employer's side:
  "The composition and chair of each body would be determined by the Deputy Prime Minister".
  It is not argued about; it is determined before we start:
  "The arrangement for non-uniformed staff would continue as now…we intend to take powers to give guidance to any negotiating body which it would have to take into account in its work".
  The Deputy Prime Minister will nominate and fix on the chairman for this body. It may be the Deputy Prime Minister himself; I do not know.
  I cannot express this issue in strong enough terms. This is something quite unique
  Lord Rooker: I do not want to interrupt my noble friend's flow, but for the avoidance of doubt, the powers about which he is talking are not in the Bill. The Secretary of State has no powers in the Bill to do the things my noble friend says he wants to do. That is in the future, for another Session—I know not which—but it is not in the Bill.
  4.15 p.m.
  Lord McCarthy: We were allowed to table the amendment. No one told me that it was not in the Long Title.
  Lord Rooker: I am not saying that. I am just saying that in this Bill the Secretary of State does not have the powers to fix and determine the composition or the procedures of the National Joint Council. Those powers are not in this Bill. My noble friend says that he should not have the powers, but they are not in the Bill in the first place. My noble friend is speaking as though they are because he is talking about the plans in the White Paper. That is for a distant Bill in the future, not this one.
  Lord Campbell of Alloway: No, with respect—
  The Deputy Chairman of Committees: We are getting a little out of order. The noble Lord, Lord McCarthy, was moving his amendment. The Minister sought clarification. If the noble Lord, Lord Campbell, wishes to intervene on this point, perhaps the amendment could be moved. I think the noble Lord, Lord McCarthy, has not yet finished moving his amendment.
  Lord McCarthy: I am quite happy—
  The Deputy Chairman of Committees: No, before we have a second intervention, perhaps the noble Lord could move the amendment.
  Lord McCarthy: Very well. I do not understand this issue, because there needs to be agreement by October. Otherwise we shall have a failure to agree. I am told by the Minister that, nevertheless, the provision for the Secretary of State to have such powers is far off, long beyond the date when there has to be agreement. That is a hit odd. What is the good of talking about this issue, which will take a long time and for which you will not have the legal powers, when you have to reach agreement by October of this year?
  I am not at all certain—and those who know more about the law that I and who support me, will no doubt back me on this—that under this Bill you would not have such powers if you were negotiating. You could argue that you did not want the existing terms and conditions in the Bill—and it talks about terms and conditions. Part of the existing terms and conditions is that workers have a recognised union. They have an agreement with the management which is part of their terms of employment, that in fact they can insist on this and that they must obtain proper notice if they are going to have it changed. It is all part of their terms and conditions, of which they have had a copy. I am not at all certain that you could not use the power in this Bill.
  I should be very glad to hear you say, "It does not matter whether we do or do not; we are not going to use them. We are going to allow these people to settle their terms and conditions, including their dispute procedures and their national council procedures, without using these powers because we do not want to interfere for a very long time ahead". But somehow I feel that I shall not be told that.
  GC 14
  I would like to carry on and make one or two other points about how monstrous this is. At one point the Minister actually tries to bring in ACAS. I have read everything ACAS has published, both in and out of print—the ACAS code of practice, which goes back a very long way, and the more recent ACAS publications. I have them here if anyone wants to see them. There is not a single word in any ACAS document to support this; nor does Professor Bain support it. He said there should be changes, but he did not say that you should put in a chairman who might be the Secretary of State. This is absolutely totally barmy. It is monstrous. If an employer ever tried to do it, I consider that—to make my argument about this—a breach of recognition. Union has recognition.
  The Secretary of State, whether he did it before or after October—I warn him—would be giving a case for the union to go to the CAC, a body established by this Government, to argue that it had been de-recognised, that it had lost part of its bargaining unit—unilaterally and without negotiation—by the Secretary of State. It would undoubtedly be against the ILO and against the European Social Charter. I wonder whether the unions have heard about it themselves. One might say, "Well, it is only the Fire Brigades Union", but I think the TUC would like to know about this monstrous thing. I doubt whether it really appreciates all this. So, to us, it is very serious. If the Minister is right and it cannot happen for a very long time, let us hope it never happens at all. I beg to move.
  Lord Campbell of Alloway: I support the amendment. Although I take the point made by the noble Lord, Lord Rooker, that there is nothing actually in the Bill that warrants the amendment, I dealt with the problem that arises on implementation of Clause 1(1)(b) in relation to the White Paper. I said:
  "Clause 1(1)(b)…as implemented by the White Paper is not only requisite but 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".—[Official Report, 3/7/03; col. GC 234.]
  There are two passages in the White Paper that prompted me to say what I did. I left my copy on my desk, I am afraid. The amendment deals with the matter. Although the issue is not in the Bill and may not therefore be strictly necessary, there cannot be any fundamental objection to including it to make sure that people, including myself, think that the White Paper was to guide implementation on this Bill—as on other Bills, perhaps. I thought that that was so. If I am mistaken, it can do no harm to include the amendment as a safeguard and for clarification. For that reason, I support it, subject to what the noble Lord, Lord Rooker says about it.
  Baroness Turner of Camden: I hope that my noble friend the Minister will understand—I am sure that he does—that this is not a particularly popular Bill and that this is not a matter of the usual suspects being awkward; it really is not. Many trade unionists feel very concerned about the Bill. As we know, the Fire Brigades Union has already urged that it should not

  GC 15
  proceed. We know that it will of course proceed, and it is up to those of us who feel this way about the Bill to do the best that we can to amend or modify it as it proceeds in Committee.
  We have been told that the Bill will be of limited duration and that it is intended to cover only specific and extreme situations. However, my concerns have not been lessened as a result of reading the White Paper. I know that we are not discussing it now; no doubt the opportunity to do so will arise when, eventually, there is legislation before Parliament. We are entitled to believe that the White Paper gives an indication of the Government's thinking about the future. Page 52 of the White Paper makes it clear that it is the Government's intention to keep a fairly tight rein on any negotiating machinery.
  As the Bill is drafted, substantial powers will accrue to the Secretary of State and it would be possible without amendment for steps to be taken in relation to the way in which terms and conditions of employment are fixed, which would not be in accord with the way in which we would like to see industrial relations conducted or the way in which they are normally conducted. To that extent, I support what my noble friend Lord McCarthy said. This is an important amendment and I hope that the Minister will give it due consideration in the light of what has been said.
  Lord Wedderburn of Charlton: I support the amendment and I want to discuss aspects of it in relation to the Bill. We are only discussing the Bill, and the question is not what the intention of any Secretary of State at present is. The question is: what are the powers that noble Lords are about to legislate for a Secretary of State in the next two years? That is the only question.
  The powers in the Bill—the Minister was quite right when he intervened on my noble friend—give the Secretary of State the power, under Clause 1(1)(a) to,
  "fix or modify the conditions of service of fire brigade members".
  "Conditions of service" is not defined in the Bill; it is described under Clause 2(2) as including,
  "pay and allowances, hours of duty or leave".
  Obviously, those are within "conditions of service", but they are not the full meaning of "conditions of service"; otherwise, the word "includes" would not be used on normal canons of construction. "Conditions of service" is a wide phrase; we will come to its precise meaning in relation to a future amendment in a different context.
  For the moment, I advance the submission that conditions of service have a relationship to procedural provisions that have their impact on the rights and duties in legal terms of employees. The extent to which procedural conditions in collective arrangements are incorporated into individual contracts of employment is the subject of a vast area of case law. In some cases, they are said to be included but in others they have been said not to be; it depends on the circumstances. My submission is that in the context of the Bill, "conditions of service" could well—indeed, would be
  GC 16
  likely to—include a case in which the modification related to the procedural and substantive aspects of the arrangements that have at their nub the National Joint Council.
  I appreciate what my noble friend Lord McCarthy said—I had not thought of it before—that that affects the whole position of recognition. He is right in that. What I had thought of was that that affects the rights that derive from international standards in relation to freedom of association. I refer especially to the ILO Convention No. 87 and the ILO Convention No. 98, which are applied to public employees in ILO Convention No. 151. I also refer to the European Social Charter. If there is any dispute about that, I am happy to read out the provisions but I apprehend that that will not be necessary because it is obvious.
  The powers in the Bill—or the Act, if it goes through in this form—could include what government policy wants to do in relation to the National Joint Council, which has immediate impact on "conditions of service"; I use the phrase in the legal sense. There will be an occasion when I must set out the case law on future amendments but I am not doing that at the moment because I hope that it will be accepted. I am sure that the Minister's advisers will have put the case law on this matter before him.
  That being obvious, it is very disturbing to realise that the Government are taking the power now to deal with matters whose policy appears in the White Paper. Curiously enough, my noble friend Lord McCarthy read out a passage that makes the case, but a previous passage should be placed on the record. It occurs on page 52. My noble friend Lady Turner referred to the page generally. The whole page is relevant but I shall read out only one sentence. Paragraph 7.12 states:
  "First, we will take power to determine the number, composition and chairing of the negotiating body or bodies for England".
  That relates specifically not just to new national joint councils, which will be created, but to the existing National Joint Council. It therefore relates specifically to the relationship of that National Joint Council to conditions of service. It therefore relates to the Secretary of State's power in the next two years to make an order that would modify conditions of service in their relationship to the National Joint Council. It would give him the power under this Bill, which he may not want. If he does not want it, then for heaven's sake, accept our amendment. All our amendment is saying is, "You do not have this power until you get your big Bill". That is all we are saying in these amendments. If we have the words wrong, then by all means tell us. I have sufficient experience to know that the words have to be put to draftsmen. However, changes to words matter to me and they matter to the law.
  By all means, let us have this amendment if the power which the Bill gives the Secretary of State is not wanted. If he does not want it, let him renounce it. That is all the amendment is saying. The industrial relations argument which my noble friend advanced in moving the amendment is a very strong underpinning of his case. I support the amendment.
  4.30 p.m.
  Lord Rooker: As I said in an intervention on my noble friend Lord McCarthy, it is not the case that the Secretary of State does not want the powers. However, even if he did, the Bill does not provide them. It does not matter what kind of elephantine scheme one draws up, unless someone can show me where in the terms and conditions of tire brigade members it says that the constitution of the National Joint Council is part of those terms and conditions, we do not have a debate. The constitution of the NJC is not part of the conditions of fire brigade members. So the Bill cannot change the constitution of the NJC. That is not part of the conditions of service of fire brigade members. So we are engaged in a debate on a different Bill which is for a different parliamentary Session.
  It is not a matter of saying that the powers are there but the Secretary of State does not want to use them. We do not want to use any of the Bill's provisions. However, within the narrow confines of this amendment on the constitution of the National Joint Council, such a power is not wanted, and it is not provided for in the Bill. There is no power for the Secretary of State to do that. This is not a way of pre-empting or bringing forward what may be a consequence of the wholly separate White Paper provisions.
  I agree that the White Paper—certainly in its comments on the negotiating machinery—paints a different picture. The Government agree with the recommendation of the Bain review of the Fire Service that a new negotiating body should involve representatives of the Retained Firefighters Union, the Fire Officers Association and the Association of Principal Fire Officers. We are also aware that the employers have plans to reform their side of the National Joint Council. Obviously, we will keep a watching brief on all those changes. However, this Bill does not confer the power to affect the constitution or the negotiating machinery.
  I freely accept, and I know that it upsets people, that the Bill gives the Secretary of State power to draw a line under a dispute—that is, to impose a settlement. That is the power and I know why my noble friends are annoyed about it. However, that is what it is about. It is not about changing the constitutional machinery of the National Joint Council. As that is not part of the conditions of service of fire brigade members, it cannot be changed by the Bill. There is therefore no need for an amendment that provides that that cannot be done. The Bill as drafted does not provide for it.
  Lord Wedderburn of Charlton: I am sorry to hear the Minister say that because his case rests on a misapprehension. I am not in the least upset or annoyed—never get annoyed if I can help it. I assure him that I am not annoyed. It is just that, with the greatest of respect, he has not understood the case that I have made.
  I am afraid that it is necessary to quote cases which the Minister appears to have overlooked. I have only the references with me, but if he would like I could happily go away and photocopy the entire judgments.
  GC 18
  If I may, I shall explain it in very simple words. The conditions of service of an employee do not include merely what is written down on the paper: there are expressed terms of employment and implied terms. My learned friend Professor Freedland of St John's College, Oxford, is about to publish a new edition of his book on the contract of employment. A vast part of that book has been, and in the new edition will be even more so, about implied or incorporated terms of employment. Those incorporated terms of employment, by implication in many cases, frequently incorporate terms from collective documents which apply to the workers and to the employers.
  The employers often rely on incorporated terms, although they often deny that they are incorporated. There is often a big argument about it in court. It is not a question of lawyers enjoying themselves with the issue. Lawyers are instructed to argue the points. I f the Minister looks at the case of British Leyland UK Ltd v McQuilkin, in 1978, in the Industrial Relations Law Reports 245, he will find a case about which an enormous amount has been written. In the end, the court held that collective arrangements are not to be incorporated into the contracts of employment individually. That caused enormous astonishment to the commentators.
  Lord Campbell of Alloway: Will the noble Lord give way?
  Lord Wedderburn of Charlton: If I may, I shall just finish the point.
  I do not know whether the Committee wants me to quote the dozen other cases on which I have now managed to put my finger. I hesitate to quote a book of my own, but if the Minister wants to look at chapter 4 of The Worker and the Law, he will find it all set out. If he would like to look at Professor Freedland's old edition or new edition, he will find—the Minister is amused by what I have just said.
  Lord Rooker: Far from it. I am crying all the way to the Latin that is in my reply.
  Lord Wedderburn of Charlton: From a sedentary position the Minister uses the method that he used in the previous sitting, for which we have received no apology, of playing the man and not the ball—in Latin, this time. I was about to translate into Latin, but I hesitate.
  Lord Campbell of Alloway: Is the noble Lord in a position to give way?
  Lord Wedderburn of Charlton: If I may, I shall continue.
  Lord Campbell of Alloway: Of course; yes.
  Lord Wedderburn of Charlton: I am very grateful to the noble Lord.
  Let me put it in words of one syllable. In a vast number of cases the issue arises of whether collective arrangements are implied into the individual contract of employment. Having looked at the agreement, the

  GC 19
  disputes procedure and the terms and conditions—which, as I understand it, are the normal terms and conditions of firefighters—I think it highly arguable whether parts of the National Joint Council procedure are likely to be implied into those contracts of employment.
  In his reply, the Minister did not respond to that point at all. He did not seem to think that there are such things as implied terms in a contract of employment. Unless he can show that it is absolutely impossible for parts of the collective arrangements to be implied into the contract of employment, he does not have a case for saying, as I believe he said, that the Bill does not provide for that possibility. It does. Simply as a matter of arguable law, that possibility exists under the Bill's powers. If he does not want that to be in the Bill, for goodness' sake say so. Accept an amendment that says so. Then there will be no problem and we can all go home.
  Lord Campbell of Alloway: I apologise for having interrupted the noble Lord's dissertation twice. As I always give way at the drop of a hat, I assumed that he might do so. I apologise for that.
  I have two questions for the noble Lord. We have heard about what is incorporated in contracts of employment. Is there a standard contract of employment for all members of the fire brigades? If so, what is in it that implies or incorporates the subjects of this discussion? I apologise for interrupting the noble Lord's great legal dissertation, but surely that is the nub of the question.
  Lord Wedderburn of Charlton: If the noble Lord wants to hear a dissertation I will give him one. But he does not; he wants an answer to his question, which he reasonably and properly puts. The standard terms and conditions for the employment of a member of the fire brigade are capable of incorporating—indeed, arguably, do incorporate—aspects of the procedures of the collectively voluntarily agreed arrangements which include the National Joint Council. That is my proposition.
  No doubt if the Minister and I met in a different context, both being instructed on opposite sides, he would say that we could make whichever argument we wanted for or against that argument according to who instructed us. However, it is not an unarguable proposition, as the Minister suggested. On the contrary, it is a highly arguable proposition. If I had to choose, I would choose that it is right. However, I would want to join him in going through the entire procedure and identifying the particular aspects relating to the National Joint Council and its composition, and to the union's right to nominate its own members and to agree with the employers on the chair. It is extraordinary to allow the Deputy Prime Minister to nominate the chair—the chair, of all things—in a voluntary body.
  All those issues impact on the individual contract of employment. Arguably, many of them—though not all of them—form an implied part of the matters on
  GC 20
  which employees can rely. What is implied is a question of the intentions of the parties. If we ask the fire authority and a fire brigade member, "Do you mean that these matters which relate to the conditions of service will be dealt with in the National Joint Council procedures?", of course they will both answer, "Yes". One can go through the agreements and find that type of issue. If we then asked, "Do you mean the National Joint Council as agreed between the pair of you, putting up your own representatives?", they would say, "Yes". If we then asked, "Do you mean that it would be chaired by someone nominated by someone—some Minister—outside?", they would say, "Good Lord, no; of course not". That is what would happen under the current arrangements. I do not know what the fire authorities would say about it in future, but I know what the workers would say. I submit that I also know what the employers would say at the moment.
  With the greatest respect, the idea that the Bill does not contain any power that could modify that position is just wrong. That is my submission. The Minister may be able to find a case. However, finding cases is not just a matter of looking up into the sky and picking out some heavenly body that attracts the eyes of the observer. Finding a case is finding a series of logical propositions in law from a judge that supports one's argument. That is why one refers to cases. If the Minister does not have any cases, I do not know where he can go.
  My submissions back the amendment and I support them. I believe that I have made a case. I believe that the Minister should at least say that he will take it away and look at it.
  Lord Rooker: I think that my noble friend has holed himself below the water in this case. I do not believe that any judge would seriously consider the comments he has just made as worth a row of beans. He made a very clever legalistic interplay between what is in this Bill and what is in the White Paper. As I have repeatedly made clear, they are totally different issues. He cites one sentence and then says, "The Deputy Prime Minister will impose the chair". That is nothing to do with this Bill. Parliament will have a full opportunity to debate that on another Bill.
  I fully accept that aspects of collective agreements are written into contracts of employment by implication; that has been the order of the day for many years. However, my noble friend used the term "aspects of procedures", whereas the amendment talks about,
  "the composition of a negotiating body".
  Anyone could look at the terms and conditions of service of a fire brigade worker and work out the composition of the National Joint Council. It is absolute and utter nonsense that the employers' side could be changed by the firefighters, but that is what my noble friends are implying. When we come to conditions of service—
  Lord McCarthy: Will the Minister give way? This matter will become clearer when I move the next

  GC 21
  amendment, but we are saying that the procedures represent rights. The workers have the right to use the disputes procedures—for example, to raise grievances. One could take away those rights through the provisions of the Bill.
  4.45 p.m.
  Lord Rooker: That is not true. I have repeatedly made it clear, although my noble friends have refused to listen or to accept what I say—at least, they are listening but they do not accept that I am talking in good faith—that the negotiating procedures, including arbitration, of the parties that are already part of the current agreement are freely available for them to use at any time they want. That is the whole point of the exercise. The idea that they cannot do so is nonsense. It is absolutely true— I said so last week and I repeat it today.
  Therefore, the issue comes down to the conditions of service, on which all kinds of things have been hung. As I understand—am not a lawyer—
  Lord Wedderburn of Charlton: No.
  Lord Rooker: No, I am not, but I say to my noble friend that sometimes I have a little more common sense than the lawyers and I do not use as many words as they do. I apologise for that but I cannot read in long paragraphs. However, I am reliably informed that in the definition of conditions of service is the word "includes". That is an important word, as are the words that follow it. So far as concerns the lawyers, it means that only certain things may be added to the list of pay, allowances, hours of duty or leave. The list is not as long as a piece of string.
  I sought expertise because I was wondering how on earth to pronounce eiusdem generis. I am sure the lawyers say that this is the same kind of thing; in other words, that the word "includes" means that only things of the same kind can be added to a list. One thing not in the list is the constitution of the National Joint Council because that is not the same kind of thing as issues relating to pay, allowances, hours of duty or leave. I rest my case.
  Lord Wedderburn of Charlton: The Minister may rest his case. I appreciate that in England it is a disadvantage to be clever on these matters. In Scotland, the term is used in an approbatory way. I find that in Wales it is acceptable, but in England it is always used in a pejorative sense. One is not being clever; one is saying some very simple things. First, the eiusdem generis rule applies only where there is a definition or finite description. A clause which sets out that word "A" includes "B", "C" and "D" is not something to which an eiusdem generis rule will apply. If the Minister wishes, I shall fetch the authorities on this matter, but his advice is bad on that. Where there is an inclusive description, it allows for argument as to what else is included. That is my first point.
  The second point is that he accepts that things are implied in contracts of employment. I urge him to look at the authorities which show how complex that
  GC 22
  question is. I do not have a habit of saying that other people's arguments are nonsense, but I do have a habit of submitting that they are wrong if I consider them to be wrong. I would never say that a judge could not possibly find against me, and I would not say that a judge could find absolutely 100 per cent in favour of me. Laymen always believe that their case is right. Lawyers have to learn that there may be another point of view.
  I have submitted that it is highly arguable that aspects of the National Joint Council arrangements, including, in particular, its composition, chair and so on—nothing is more fundamental to arrangements than who is there to discuss and settle disputes on these matters— which are relevant to the individual rights, as my noble friend Lord McCarthy put it, of workers and employers can be incorporated by implication into a contract of employment. I stand by that proposition and, until the Minister can produce an authority which says that that is impossible, he should accept the amendment.
  Lord McCarthy: I have only three or four points to make. First, I am still trying to pour oil on this matter but I am not getting very far. We do not say that the Secretary of State intends to use the powers in the Bill for the purposes that we wish to set aside and make possible in the amendment. Of course, we do not say that. We are not saying that he wants to do, intends to do and will do that. Of course, he will not.
  Secondly, we cannot say that, if he tried to do so, he would not have the legal balance. It is an arguable case. In any event, I do not really care because I am trying to go deeper and to raise something more fundamental than that. I am trying to warn the Government and the party about what they are putting in the White Paper.
  I return to the point that I made at the beginning. There will be negotiations—for all I know, they are taking place now—but in what atmosphere? Trade unionists can read this and see what the Secretary of State is suggesting he will have power to do and would like to see happen when a subsequent Bill is brought forward. When the parties are negotiating to try to find a way out of a dispute and to achieve a simpler, more effective disputes procedure—which was very much one of the basic reasons that the dispute lasted as long as it did—they will say, "This is blackmail. The employers are not serious because they have big brother coming up at the back. They have these powers coming up. They are saying to us, 'Agree to this monstrosity. Decide who the workers' side is going to be, otherwise it will be worse when we get the Bill"'. That is not the way to start.
  It may be said, "It's against the ILO. We don't care for the ILO". It may be said, "It's the European Social Charter. We don't care". But—this is my final point—let us listen to the ACAS code of practice. This matter concerns who chooses whom in the sides in collective bargaining. It is clear that, given recognition, unions provide those who put forward collective views. They must be accredited union representatives, chosen by

  GC 23
  unions and responsible to them. That is what ACAS says. This matter goes back to 1971 when the Conservatives were in power.
  The ACAS code states that the parties seek agreement on the number of groups to be covered. Of course, that is all negotiated. No one is saying that the Secretary of State or his representatives cannot have policies. But, again, the ACAS code states that it is for the unions to decide the conditions for election, age, length of service and so on. But this is an issue of mutuality, and one problem is that the Government do not understand any more. It is amazing, but they do not understand mutuality. It is for the unions to decide the conditions of election, age, length of service and so on, and it is for management to decide the facilities and report back for elections and so on. It is a mutual process.
  What the Secretary of State will one day take power to do and is telling the unions—they can read it anyway—is that that is where he wants to go. Where tasks are undertaken by full-time officials, they are trade union officials. That is in the ACAS code. That is what happens whenever there is recognition. Those are the rights that workers enjoy when they come before their employer and have recognition.
  However, the White Paper and a Labour Government want to destroy the whole process. I say, "Be careful. Be warned. Try to enter these negotiations not threatening them with a big stick. Try to accept what is agreeable and what can be accepted. Don't go down this road". I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Lord McCarthy Lord McCarthy moved Amendment No. 21:
  Page 2, line 15, at end insert—
  "(5B) An order under this section shall not include any requirement on a negotiating body connected with its procedures related to the negotiation of conditions of service of fire brigade members, other than as provided in subsection (3), and in particular shall not provide that disputes may be referred by way only of a joint reference to a disputes procedure used for the determination of issues relevant to the fixing or modification of conditions of service of fire brigade members."
  The noble Lord said: I am sorry to say that, again, we are going back over the same ground. This matter concerns the White Paper and, no doubt, the Minister will become annoyed.
  Lord Rooker: The answer will be the same.
  Lord McCarthy: Yes, I know, and he has not heard the argument.
  Lord Rooker: But the answer will be the same.
  Lord McCarthy: I know, but he is going to hear the argument. The amendment states:
  "An order under this section shall not include any requirement on a negotiating body connected with its procedures related to the negotiation of conditions of service of fire brigade members, other than as provided in subsection (3), and in particular shall not provide that disputes may be referred by way only of a joint reference"—
  this is the heart of the matter—
  "to a disputes procedure used for the determination of issues relevant to the fixing or modification of conditions of service".
  GC 24
  I shall cut out all that when we argue—although I hope that we shall not argue—about whether this issue is covered by this Bill or a subsequent one. We shall not agree, and therefore I shall not inflict it upon the Minister or the Committee.
  I want to say only that the provision is a monstrosity. The Government do not understand the principle of mutuality. Once again, that is what they will say to the boys and girls when they seek to renegotiate the disputes procedure. They will say that if the procedure is not acceptable to the sides, then their objective will be to impose it by law at some future date.
  The concept of joint reference to a disputes procedure is a joke and a farce. The disputes procedure is the balance. It is the workers' part, just as the disciplinary procedure is the employers' part. Those balance the two sides and always have done. In fact, in past industrial relations Acts, the Government have legislated to give workers a right of this kind. But there would not be a right at all if a worker had a grievance and he or she had to go to the employer and say, "I have a grievance against my supervisor", or, "I have a grievance against the contract", or, "I have a grievance about the way that I am treated", and the employer said, "No, no, I can't sign that. Go away". That is not a grievance procedure; it is a joke.
  Of course, grievances and disputes are one side of the exercise. I could not find the quotation from Flanders v. Clegg, but it would have been found to be self-evident. However, I found a quotation from one of the newer fellows, Professor Salaman, who wrote on industrial relations trade union practice and expressed the point about the interactivity and inter-relationship between, on the one hand, grievance and disputes procedures, which belong to the workers, and, on the other, disciplinary procedures. He states at paragraph 19.2 of his book:
  "The grievance/dispute process is concerned with the right of employees to express, and seek to resolve, dissatisfactions they may have in respect of any aspect of their work situation. Consequently, all organisations require some grievance process to resolve this dissatisfaction—irrespective of whether trade unions are recognised or not. It is complementary, but opposite, to the disciplinary process",
  which, of course, belongs to the employer. He continues that it is,
  "complementary in that they both seek to express and resolve dissatisfaction, but opposite in that the disciplinary process is initiated by management whereas the issues which form the substance of the grievance/dispute process are originated by employees".
  Everyone who knows anything about industrial Relations—every personnel manager and every supervisor—knows that, but not the Government. If they cannot do so now, I ask the Government to think again and not do so in future. I beg to move.
  5 p.m.
  Lord Rooker: I apologise to my noble friend for speaking from a sedentary position. I should have been standing when I said that the answer will be the same. I refer back to everything that I said in regard to

  GC 25
  Amendment No. 20, which is relevant. The current situation whereby the Fire Brigades Union has an ability to unilaterally invoke the National Joint Council's dispute resolution mechanisms is not affected by the Bill. The amendment is not needed. The Bill does not touch on it.
  Lord McCarthy: It is not really much to say, "The only answer I can give you is that it is not covered by the Bill". That is disputable. I should have liked the Minister to say, "It is a pretty doubtful exercise". But he did not say that. Let us hope that someone will read what has been said, will think about it and say, "What idiot decided to put this in the White Paper?". It seems to be the only hope that we have. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendments Nos. 22 and 23 not moved.]
  Baroness Hamweemoved Amendment No. 24:
  Page 2, line 19, leave out -two years" and insert "one year"
  The noble Baroness said: In moving Amendment No. 24, I shall speak also to Amendment No. 25, with which it is grouped, which stands in the name of the noble Baroness, Lady Hanham. She will be surprised that we have moved on quite so fast, although one should not complain about that.
  Clause 1(7) provides that no order shall be made more than two years after the Act commences, which, I believe—unless the Government have some procedural device up their sleeve—will not be before mid-September at the earliest and probably later; in other words, some four or five months after the Bill was originally introduced.
  As I understand it, the Bill was introduced to deal with a particular dispute which is now over. I acknowledge that the sunset clause included in the Bill was not there before and we welcome the fact that the Government have introduced it. I rather liked the comment of the honourable Member for Manchester Central, Mr Tony Lloyd, in another place who said that the sunset clause was designed for a difficult Bill. I beg the Committee's pardon, I am looking at the wrong page. When the Minister was challenged on the concept of a sunset clause he was about to stand up and tell him,
  "'Minister, I am your sunset', but being the sunset for the Labour Government is a task rather bigger than I wish to take on".—[Official Report, Commons, 3/6/03; col. 38.]
  The Minister in another place argued and confirmed that the Bill should be a temporary measure. He said that it was necessary for the Secretary of State to have powers in place until there is new legislation based on the White Paper. In less formal language, I read that as the Government retaining for themselves a legislative cosh until they have the next piece of legislation in place. I am sure that the Minister will say that I am wrong about that, but that is an interpretation that will be widely made in the context, as many acknowledge, that the Government much prefer settlements to be negotiated and not imposed.
  GC 26
  We are told that the Government do not want a hiatus between the lapsing of this Bill and the implementation of the new one. Mr Raynsford said that they did not think that would be healthy or sensible. We do not believe that it would be healthy or sensible to retain the power for the two years provided in the Bill. I spoke to this issue at Second Reading and there is a clause stand part debate to come. I do not need to repeat the arguments against the Bill that I made at Second Reading and I do not in tend to prolong the Committee stage by so doing. They are on the record.
  The amendment of the noble Baroness, Lady Hanham, seeks to substitute "eighteen months" for "two years" rather than my substitution of "one year" for "two years". The noble Baroness may be able to explain why 18 months is preferable to one year. I am rather glad that I referred to her amendment because she will now be given an opportunity to do so. I beg to move.
  Baroness Hanham: I apologise for my momentary absence. The Bill contains a sunset clause of two years, which I recognise has been agreed in the other place. However, it was agreed before the unions said they would consider the settlement. We all hope now that there will be a successful outcome.
  The timetable laid down for negotiations and discussions after Royal Assent, which we can reasonably assume will not be very soon, will ensure that these matters are all completed within 18 months and therefore the Bill will need a shorter time length if it ever becomes law at all. That is the reason for reducing the period from two years to 18 months. I am sure that the noble Baroness, Lady Hamwee— to whom I apologise for not being here to hear her speak—has made a good case for reducing it to one year.
  Lord Rooker: I shall do my best to address both amendments. The thrust of the amendments is the same but the timetables are slightly different. In some ways, the timetable is not an unimportant matter.
  I appreciate that the two-year sunset clause was not contained in the Bill at the Second Reading stage and was inserted during its passage through another place and it is true that a settlement of the dispute has been achieved. However, we still have to consider the timetable of the other agreements. The White Paper in regard to modernisation has been published and no one will claim that its recommendations will be achieved overnight. We therefore need to retain the powers in the Bill to be reasonably sure that the improvements we want to see are well on the way to being achieved.
  A time limit of 18 months would take us to the beginning of 2005—I am not being prescriptive about the date—which sounds a long time away. It might just be sufficient if a Bill to implement the White Paper policies was to be introduced in the next Session and received Royal Assent. But that cannot be guaranteed. With a 12-month time limit, there would be a serious

  GC 27
  risk that the powers would lapse before any Bill setting out the long-term strategic framework would receive Royal Assent.
  We also need to bear in mind that the normal pay settlement date for the Fire Service has usually been in November each year. The deal now agreed will change that, bringing the date forward to July. So, if there are any problems with the agreement and the dispute flares up again, we could be faced with the possibility of having to make an award not only for November 2003 but also for November 2004. If we were in that situation, it would not help to be working against a 12-month time limit running out before the November 2004 settlement date.
  In any event, experience—particularly over the past 12 months—has taught us that we need a backstop. Reform of the Fire Service and the legislation that it will entail is a Government priority but obviously I cannot say that it will be in the next Queen's Speech. At my humble level in Government I cannot be certain of that, nor can anyone else. The Bill will be a stopgap which will enable us to deal with the immediate future but not tackle the long-term challenges. As I have said repeatedly, we are not proposing that.
  At the moment there are good and excellent grounds for optimism because of the agreement between the employers and the Fire Brigades Union. We sincerely hope that we will not need to use the powers at all but we would be open to criticism if, in 12 months' time, we found ourselves facing further disruption and frustration without the powers in the Bill, having had them and given them up. Two years gives a greater degree of certainty which, in the circumstances, is reasonable bearing in mind the change in the pay date and the milestones which are to be achieved under the current agreement. That will see us well on the way to a future modernised Fire Service.
  While I accept that a case can be made for 12 months or 18 months—indeed for the minimum period possible—I hope that I have given sufficient comfort that, given the way in which the dates come together, two years should see us safely into the new system.
  One could argue that three years would be unreasonable because it would indicate that the Government were not treating the modernised Fire Service as a priority. But we do intend to treat it as a priority and have taken the powers for no longer than we feel reasonably necessary—that is, two years. I hope that the noble Baroness will not pursue her amendment.
  Lord Wedderburn of Charlton: I understand the Government wanting two years. The logic of the Bill is that they must have quite some time to do what they want to do. I hope I have followed my noble friend's reasoning. The Government want to exercise the powers to ensure that the improvements they desire are well on the way to being secured. Those improvements will affect not only the use and disposal of property but conditions of service. Therefore the proposition has a great impact—without repeating any word of it—on the debate about the previous two resolutions.
  GC 28
  Twelve months would not be enough because what I shall call the big Bill—the long-term big Bill—may not have secured Royal Assent. With the pay settlements in July—which I believe is a very material factor—the Government may, as the Minister said, "need to make an award". I comment on that only because it repeats the suggestion of my right honourable friend the Deputy Prime Minister that this was some kind of "arbitration". He used that word many times in another place. I apprehend that it is not wrong of me to refer to his statements because, as the Companion makes clear, one should refer to the other place only on matters of government statements.
  But he is not making any kind of arbitration award. As we have seen from the amendments moved by my noble friend Lord McCarthy, arbitration of any kind is outwith the concepts that underlie the Bill. It is a government imposition of terms. It is interesting that the Minister talks about making an award. Words matter to me—I accept that. If I may put it this way, judging from what he said the Bill is to shepherd something in as a stop-gap. It is the shepherd dog to the collection of the big Bill into the fold.
  Of course two years are needed for that, with great respect for the noble Baronesses who tabled amendments about shorter periods. It only makes sense if the powers are to be available. In the form that we have explained to the Minister, they are available. Of course the Government cannot see exactly when they want to use them, but the width of the powers is clear. That makes the case for two years. In fact, it might make the case for a longer period, so the Government are being quite modest. The fact that the Government want two years and to make orders that do not necessarily come to an end after two years, unless they choose to make them do so. is a logical hole. It is therefore of great importance that this debate should put the context around the debates on the other amendments.
  5.15 p.m.
  Baroness Hanham: Will the noble Lord agree that the sunset clause was imposed in the other place, and was not an original part of the Bill? Therefore, it seems not unreasonable to test whether that sunset clause gives the right amount before the sun sets.
  We have grave doubts about the Bill on all sorts of fronts, as I have made clear. To us, the important thing should be that the provision is in for the most limited time necessary, if it is to go in at all. Looking at the timetable that has been set out for the negotiations and discussions, 18 months would be perfectly within those limits. That is why I tabled the amendment—so that the Bill is not effective for a moment longer than it needs to be.
  Lord Wedderburn of Charlton: I am most grateful to the noble Baroness for asking me the question. I appreciated that the sunset clause was put in by amendment in another place. I agree entirely that how quickly the sun goes down on the Bill is at the centre of all our thoughts. We all pray for night to overcome it. The provisions were put in by amendment, and I

  GC 29
  deeply regret that the Government did not table such provisions themselves. Nevertheless, on the logic of what the Minister has explained, I see why they want them for two years and not less. I was not in the least criticising the amendments, but saying that I could understand, on the logic put to us by the Minister, why the Government want two years. That thought infuses the arguments on other amendments.
  Baroness Hamwee: I have thought for some time that, if one accepts the Government's thinking, two years is not enough. I am surprised that they did not go for three years. The period is likely to take them into the frantic time just before or around a general election, with all the pressures at the end of a parliament, or perhaps of a new Session. However, I do not propose three years, but one year.
  I described the provisions as a legislative cosh that the Government wanted to keep up their sleeve until the big Bill was in place. That seems to amount to an expression of no confidence in the current procedures to get us all through the next couple of years. The Minister said that the Government were optimistic. I talked for a moment at Second Reading about the psychology and whether the provisions might have completely the opposite effect to that suggested. If I were on the other side—not strictly on the other side, but in another corner of the triangle—as an employee, I would behave rather worse. It would make me rather more belligerent, not less, to know that the Government could use such a measure..
  The Government have started down the road, however, and if grief is caused, it is caused. I hear the Minister's reasons why the Government believe that two years is appropriate. I beg leave to withdraw the amendment.
  Amendment. by leave, withdrawn.
  [Amendment No. 25 not moved.]
  Lord Wedderburn of Charltonmoved Amendment No. 26:
  Page 2, line 21, at end insert "and an order made under this section which has not been previously revoked shall lapse automatically three months after the end of that two year period"
  The noble Lord said: Amendment No. 26 asks the Government to accept that, if the Bill is to have a sunset imposed on it, to say that the sunset falls at the end of two years is not really enough. As it stands, the powers granted by the Bill—that is what I am interested in—allow the Secretary of State to make orders and for those orders to remain as law for as long as he likes, subject to disapproval by negative resolution, until he chooses to revoke the orders.
  It would build confidence in the entire procedure if the Government felt able to say, "The orders will also come to an end as the sunset descends". The amendment suggests that orders made under the Bill should automatically lapse three months after the end of that two-year period. We are not in the least wedded to three months. If the Minister has some other reasonable period to build that confidence, no one would push for three months as obviously right.
  GC 30
  There should be some offer, even if it were only the offer to have the orders automatically lapse as the sun of the big Bill rose in one end of the globe and the interim measure sank into the sunset at the other. Even that and not a finite period of time would build confidence in the interim nature of the Bill. At the moment, the Bill itself may be interim, but the powers exercised in orders under it are not. I therefore urge the Minister to accept at least the spirit of the amendment, and to give more confidence in the whole process by saying, "Orders made under the finite Bill shall be finite, and, if you don't accept three months, we shall find a formula to be introduced to the Bill so as to make the sunset available properly to all". I beg to move.
  Lord Campbell of Alloway: I ask the noble Lord, Lord Rooker, to consider the principle of the amendment with favour. It is quite apparent that something will be left over at the end of the two years. The point was made very well by Liberal Democrats at Second Reading and, frankly, it was not met by the answer that it received. On this occasion, reconsideration should be given to it.
  Baroness Hamwee: I support the amendment. I know that it can be irritating if one speaks to amendments in later groupings, but my amendment, Amendment No. 28, has far more in common with this amendment than with Amendment No. 29, with which it is grouped, so I shall make the point now. I suspect that the Minister will not have any more to say on my amendment other than that it may not nearly be as well drafted as Amendment No. 26, which is far more eloquent. Amendment No. 28 amounts to orders lapsing at the end of the two years rather than three months after the two years, which is really the only difference.
  Whatever the technical demerits of the drafting, my points underlying Amendment No. 28 are that, if there is to be a two-year effect, it should be a two-year effect. Permitting successive Secretaries of State to impose conditions once an order is in place is unacceptable. As has been said, it means that the sun does not go down. The provision in the Bill means that it hovers on the horizon for ever.
  Lord Evans of Temple Guiting: I can appreciate the noble Lord's wishes to ensure that the sunset clause really means the end of the order-making powers. However, we feel that there is a flaw in the amendment. If an order had been made before the expiry of the sunset clause with the effect of making a pay award to fire brigade members, the amendment would mean that the pay award would be negated three months after the two-year period. Fire brigade members would then have to revert to their previous pay rates, which would clearly not be a good idea or desirable. Other matters that might be covered by orders include duty systems and shift patterns. If staff moved into a new shift pattern—one that they might well prefer to existing shifts—the order making the new pattern could expire. Where would that leave them?

  GC 31
  The fact that something is imposed by order does not necessarily mean that it is unwelcome or should be reversed, which is what the amendment does after the sunset clause has effect. The problem with the amendment is that it really seeks to unscramble an omelette. Action taken in reliance on the order—pay raised, equipment moved, property sold—cannot be reversed without causing chaos. That applies whether or not the changes are palatable to the Fire Brigades Union. I invite the noble Lord to withdraw his amendment.
  Lord Wedderburn of Charlton: I appreciate my noble friend's reply, which was what I expected. It makes a very serious point about the amendment, which is in that sense defective. I therefore appreciate that we have to take it away and look at it again. Of course, the answer to his argument is that the order should lapse at a particular point, however it is defined, after the sunset has imposed itself on the Bill in regard to conditions of service imposed by the order, except where they are more favourable than the conditions of employment that preceded the order.
  It is perfectly simple to meet the point. As a matter of fact, in many statutes, a variety of words are used for the provisions, and terms that are more favourable to the employee is a common type of condition in employment law. There is no reason at all why the orders should not lapse where they are more favourable to the fire brigade members than the conditions of service that preceded the order.
  If we think about that before we reach Report, we may come back with a version of the amendment that would meet the argument put forward on behalf of the Government, and in turn we hope that we would then meet with an agreement on their part to accept it. For the moment, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 27 not moved.]
  5.30 p.m.
  Baroness Hamweemoved Amendment No. 28:
  Page 2. line 21, at end insert —
  "( ) No order made under subsection (1) shall enable the Secretary of State to take any action provided by that subsection after the period provided by subsection (7)."
  The noble Baroness said: In moving this amendment I shall not repeat what I said on Amendment No. 26. However, having listened to the response of the noble Lord, Lord Evans, to that amendment, I should like to hear what the Government have to say on Amendment No. 28, which adopts a different approach to the point. I beg to move.
  Lord Wedderburn of Charlton: I want to say only that the noble Baroness was absolutely right. Amendment No. 29 is wrongly grouped with Amendment No. 28. If we must take responsibility for that, then we do so fully. I shall not speak to Amendment No. 29 because Amendment No. 30,
  GC 32
  tabled by the noble Baroness, Lady Hanham, covers the ground. I seek simply to explain the position to the Committee.
  Lord Evans of Temple Guiting: Amendment No. 28 is designed to stop orders made under the Bill being used to extend the sunset period and thus get round the constraint provided by Clause 1(7). I want to assure the Committee that we have no intention of attempting any such thing. We accepted the principle and the practice of a sunset clause in good faith. Moreover, I can tell the Committee that the Bill does not allow the Secretary of State to do that anyway.
  Clause 1 permits the Secretary of State to make orders affecting fire brigade members or fire authorities. It does not permit him to make orders giving himself further powers or extending the time limit set in the primary legislation.
  The noble Baroness may have in mind subsection (5)(c) and (d), which allows for orders to make provision for exemptions and exceptions, and incidental, supplemental, consequential and transitional provisions. But I can assure her that those paragraphs do not allow for an extension of the sunset period.
  Baroness Hamwee: I am sure that there must be a clearer way of expressing those points. I shall have to take this away. While not for a moment do I suggest that the noble Lord has not given me the assurances in good faith, I hope to be able to read the words and find the same reassurance as I heard when he spoke. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 29 not moved.]
  Baroness Hanhammoved Amendment No. 30:
  Page 2, line 22, leave out subsection (8) and insert —
  "( ) No order shall be made under this section unless a draft of the order has been laid before, and approved by resolution of, both Houses of Parliament."
  The noble Baroness said: This amendment would ensure that any proposed order would be brought before the House for consideration.
  There are huge problems with this Bill, as we have discovered over the course of our consideration of it in Committee. Concerns have been expressed on both sides of this House, as was the case in the other place. If any order is to be made relating to this Bill, then that order must be laid before both Houses for a positive resolution in its favour.
  I can almost hear the Minister's response saying that there would not be time to do that. It might be that an emergency decision would need to be taken on a negative resolution, but that will not do with regard to this Bill. Sufficient concern has been expressed about it to justify the request that any provisions brought forward under it by statutory instrument ought to be laid before both Houses for consideration before they are passed into statute. I beg to move.
  Lord Campbell of Alloway: One of the great worries with regard to this Bill is emergency legislation; that is,

  GC 33
  an order made in a state of emergency as distinct from orders made otherwise. On those there is a serious argument about arbitration hut, on the emergency aspect, there is not. Action may have to be taken at any time, but what would happen?
  I think that the Houses of Parliament sit for about one third of the 52 weeks in a year.
  Lord Rooker: The Houses sit for two thirds of the time.
  Lord Campbell of Alloway: What would happen if an emergency arose when the Houses were not sitting? This seems a very unsatisfactory proposal. How will the Secretary of State be able to deal with the emergency, under the Bill either as it stands or as I am seeking to amend it? The emergency aspect is the most worrying. The only way it could be dealt with, in effect, is that when a situation arose where immediate action had to be taken in the public interest, the Secretary of State should have the power to make the order—if that agreement were carried in an amendment.
  The Secretary of State would always be subject to the supervisory jurisdiction of the High Court. Although for all practical purposes it would not happen, if a Secretary of State in attending to his duties sought to declare that there was a state of emergency when in fact there was not, the court would be the effective control, if it were needed. I do not think that it would be needed, but whether or not that is the case, it does not have to be built into statute because the supervisory jurisdiction already exists.
  That is appropriate. In an emergency situation which warranted immediate steps to be taken in the public interest, the Secretary of State would have full powers to make the order. But he could not do so if Parliament were not sitting, which really would dish the whole object of the exercise.
  Lord Evans of Temple Gutting: The amendment requires orders made under Clause 1(1) to be approved by resolution of both Houses. As currently drafted, the Bill provides that orders made under Clause 1(1)(a)— that is, in respect of conditions of service—should be subject to the negative resolution procedure, as anticipated by the noble Baroness, Lady Hanham. Orders made under Clause 1(1)(b)—those containing directions to fire authorities—are exercisable by statutory instrument but not subject to the negative resolution procedure.
  I should like to draw the attention of the Committee to the 21st report of the Select Committee on Delegated Powers and Regulatory Reform, published on 11th June last, which considered the delegated powers contained in this Bill. As Members of the Committee will know, the committee considers evidence on whether delegated powers proposed in Bills are appropriate, along with the degree of parliamentary control over the exercise of each power. The committee's 21st report concluded that there was nothing in this Bill to which it wished to draw the attention of the House.
  GC 34
  Turning to the point raised by the noble Lord, Lord Campbell of Alloway, on parliamentary sittings and crises arising, it is absolutely right that if Parliament is not sitting, nothing can be done. However, it would depend on how a crisis was defined. We could all imagine a crisis where Parliament would he recalled. At present, if a problem arises which needs to be resolved by both Houses, that can be done only when both Houses are sitting.
  Baroness Hanham: I thank the Minister for that reply, and my noble friend for his intervention. I have many concerns about this Bill, but one important concern is that it will give the Secretary of State almost unprecedented powers to intervene in a potentially serious situation. That serious situation is that the negotiations currently under way are not concluded in a manner satisfactory to the Secretary of State. If that were to happen then it seems to me that it would be more of a problem for Parliament as well as the Secretary of State than it would be for the Secretary of State alone.
  Indeed, as my noble friend pointed out, it would be an emergency situation, but it would also be an enormously difficult circumstance and really not one conducive to one swipe of the pen on the part of the Secretary of State. We feel that it would require more than that; it would need the authority and backing of the House. Further, that would depend on whether the Secretary of State was seeking to impose certain terms and conditions of service, a pay settlement or whether he was seeking to instruct local authorities on getting rid of or amalgamating fire stations.
  Under the situation in which we find ourselves—that is, the situation which has brought this Bill before us because the Government are uncomfortable and unsure of how to proceed in what has been a situation of defiance—Parliament would offer a very necessary process of scrutiny of proposals in order to help the Secretary of State reach any final decisions.
  While I hear the reply from the Minister, given the terms in which the Bill is couched, I am not convinced by it. However, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Lord Wedderburn of Charltonmoved Amendment No. 31:
  Page 2, line 26,at end insert—
  "(10) No action shall be brought in any court to enforce the duty of a fire authority under subsection (9) except by the Secretary of State by way of an application for enforcement of the duty."
  The noble Lord said: In a sense, this amendment opens a new area of debate in our Committee. The amendment appears on its own because it deals with an issue separate from the other amendments. A grouping originally proposed by the Minister's department threw this amendment. along with some 12 other varied proposals, into a grouping which did not address any of the same matters. So in order to have a meaningful debate, my noble friends and I exercised our normal rights as set out on page 110 of the

  GC 35
  Companion to remove our amendments from the gigantic conglomerate list in order to debate them in a manner which would be meaningful in your Lordships' Grand Committee.
  I must refer to a certain matter, and I shall explain why. We were later accused of improperly changing the rules by altering the draft groupings at quarter past 12. I do not know where that time came from. In fact, we changed the groupings before 12 o'clock, which was the time that had been agreed with officials. Moreover, we were accused of wrongfully creating anarchy in the procedure, simply by doing what is normally done with regard to the grouping of amendments.
  There has been no apology for or comment on those remarks as recorded in Hansard at col. GC 286. I mention it only because it is relevant: we have received no intimation of an apology whatever either for that or, indeed, for a number of other things.Several of the amendments to which we now turn try to deal with matters on which the Bill is largely silent. Amendment No. 31 is one such amendment. The silences in the Bill and its interaction with the common law make it a Bill of enormous complexity. I shall submit that to the Committee, especially also with regard to Amendment No. 34.
  Overall, the issues include the following: the nature of the duties under the Bill; who can enforce them against whom—Amendment No. 31 deals with one aspect of that; the duties of fire authorities and the duties of fire brigade members; the Secretary of State's powers in international law to effect those; and, in domestic law, the impact of non-compliance or contravention of the orders or directions upon the legality of the acts of those responsible for contravening them or inducing their contravention.
  The Bill's silence on some of those aspects throws doubt on the legal validity of industrial action, affecting the implementation of orders under the Bill. The Minister has already made many references to the use of powers in the Bill in the event of a strike and also to the legal position of third parties which are relevant and of individual rights for fire-fighters which may come before the courts in respect of the provisions to which the powers in the Bill may relate.
  Perhaps I may say clearly, because it is not my job to guess, that I do not know whether the silences which create the complexity and the problems are intentional or mistaken. That is not for us to say. Our amendments seek only to avoid the making of bad or mysteriously uncertain law, which the courts will have to interpret, and to repair the minimum of those deficiencies. In some cases, the amendments are alternatives. However, if at least a few of them were accepted, including this one, even in spirit, the Committee would be relieved from what would necessarily be lengthy explanations of later amendments. I make no apology for that because this debate involves very difficult areas of common and statutory law.
  GC 36
  Perhaps I may explain briefly what underlies Amendment No. 31. Persons placed under duties by statute and third parties—whether employers or trades unions—are entitled to a full examination by Parliament, under fair procedures, of their possible legal liabilities and an examination of who will enforce the duties and how.
  Certain rights are contained in the Bill and certain rights and duties may be implied in the Bill. No right is stronger than its remedy. If a citizen, a fire authority or the Secretary of State has certain rights, but it is not made clear how those rights are enforced and what the sanctions are, then the courts face a very difficult problem. Amendment No. 31 addresses the first of those issues.
  The first silence is: what is the position of parties and third parties faced with an order? Clause 1(9) at least sets out one point. It is virtually the only place where guidance is given on these matters. It states:
  "It shall be the duty of a fire authority to comply with a direction contained in an order under this section".
  What happens if it does not? The Bill does not tell us.
  I must add at once that I do not say that the Bill is wholly exceptional in that respect. Surprisingly perhaps, it is not uncommon or totally unknown for a statute to impose a duty and to be unclear or even silent about enforcement and the remedies and sanctions, if any, for its contravention. The learned editor of a leading textbook, Winfield and Jolowicz on Torts—to some extent, this is all about torts—states with some scholarly pith:
  "Certainly it should not be assumed that where a statute is silent this is because the promoters have not adverted to the point—much more likely that it would be politically inconvenient to attempt to answer the question one way or another".
  When that happens, it is then for the courts to sort it out as a matter of law. They must ask what is Parliament's intention, which is not quite the same as asking what is the Minister's intention. It is the responsibility of every participant in this Committee to formulate in his mind what he thinks is the parliamentary intention in the Bill. Is it Parliament's intention that a Minister can sue the non-compliant person or fire authority? Can a third party sue them for an injunction for damages in civil proceedings in tort? If so. under what circumstances and for what remedy?
  There will not, of course—as people have sometimes thought—be any criminal sanction. That is clear. Parliament has not specified a criminal liability, for example, on a fire authority that does not totally comply with a direction under Clause 1(9). But can a civil action lie? How do the courts judge that intention of Parliament? Lord Denning, when Master of the Rolls, once said that in such a case Parliament,
  "has left the courts with a guess work puzzle. The line between the pro-cases and the contra cases is so blurred and ill-defined that you might as well toss a coin".
  That was in 1978. Legislation has not totally improved in that respect since then. The Bill is a large example, which will keep people who write on these matters and the courts occupied for a long time.

  GC 37
  If there is to be enforcement by civil action, there must be proof of a breach; there must be proof of a duty owed to the claimant or plaintive, whoever that may be; and there must be proof of damage caused by the type which the statue envisages. I see that that causes some amusement for some noble Lords. I am pleased about that. Perhaps I may just finish that particular sentence. This has very curious results. In a famous case in which Parliament said that machines must be securely fenced, the courts held that a piece that flew off and hit the worker was not something for which he could sue because the object of the Act was,
  "to keep the worker out, not to keep the machine or its product in".
  I cite that as an example of the tremendous difficulty that the courts have when the Act is silent. I give way.
  Lord Campbell of Alloway: I am grateful to the noble Lord. All this legal expertise—Lord Denning and so on—is getting a little tight. Does the noble Lord realise that if these proceedings were on the Floor of the House, one could move that the question be put? But here we are absolutely clobbered. We have no right to divide. Therefore, the noble Lord can go on and on and not give way until it suits him, which is fair enough. But, surely, as a matter of reason, this argument could be condensed with respect and repeated on the Floor of the House where something could he done about it.
  Lord Wedderburn of Charlton: If the noble Lord wants to shut me up, he will no doubt take some measure to try to do so. I am trying to put an argument. It is an argument which normally occupies about a quarter of a term's study for those who are interested in the subject. I am trying to put it in 15 to 20 minutes. If the noble Lord does not want me to complete the argument, no doubt he will depart. But I intend to complete the argument on subsequent amendments, which involve matters that I believe the Government have possibly overlooked.
  The Government may have overlooked matters of law. I am sorry to argue the matter on the basis of law, but the Committee is making laws. It is not simply engaging in some sixth-form debating; society; it is making laws. If Members do not want to know what the laws mean, then they will not argue about them. My points illustrate the simple fact that Parliament does better when it clarifies its intentions, rather than leaving matters silent and making the courts engage in guesswork as to those intentions. That is why I quoted Lord Denning. I did not want to say that on my own authority; I say it on the authority of Lord Denning.
  Amendment No. 31 would help in one rather preliminary respect. It specifies that the Secretary of State is to be the claimant for enforcement of Clause 1(8). I may have previously said Clause, 1(9). If so, I apologise; it is Clause 1(8). It does not try to specify the exact legal remedies. That would make the Bill much too procedurally technical. The courts can be trusted to find right procedures and remedies once they know what Parliament's intention is on the enforcement of the duty which Parliament has expressly said lies upon particular bodies. Currently, it does not.
  GC 38
  Under the amendment, no action would lie for an injunction or order at the instance of a third party. I must be quite clear what the amendment says. Where a fire authority has not obeyed a direction to move appliances—for example, from Shooters Hill to Hampstead—and a station is in consequence inadequately resourced to fight a fire, the home owner who said that his house might be threatened would fail at the first fence in any action he brought if the amendment were adopted, whether for an injunction or for damages in a civil action in tort. He would not be a permissible plaintiff. If the Government want that to be different, they will amend the Bill to say so and state that a third party can enforce the duty set out in Clause 1(8).
  There are innumerable other difficult aspects of the problem, which I shall not spell out. Parliament has debated the issue on a number of occasions in regard to other Bills. It is not a new point in legislation: it is almost "first-year" stuff. Where there is a duty, it would be a good thing to set it out. That is especially so with regard to injunctions.
  If Parliament means that either the Secretary or State, a third party or both should have a power to apply for an injunction—and I shall explain later why that is so important—then it is particularly important to make clear in the Bill who can sue for what if there is a failure to fulfil the duty. The unlawful conduct in breach of the duty of Clause 1(8) may no doubt he less likely than a failure to comply with some other kind of order. I have only taken it here first because it is a duty of the fire authority. I have no doubt that the Minister will rightly say that the Secretary of State will be able to impose all kinds of pressures on fire authorities to do exactly what the direction says. But there may be—indeed, it is very likely to be—a case in which someone says, "You have not complied with it fully and properly". In that case, who has the right to enforce it, what remedies do they have to enforce it, and would it not be better to say so? I beg to move.
  6 p.m.
  Lord Rooker: Clause 1(9) is one of the shortest subsections in the clause. The fewer the words, the less likely they are to be confusing. It is fairly clear that there is a duty on a,
  "fire authority to comply with a direction".
  The amendment would mean that only the Secretary of State could bring such an action before the courts. I say without qualification that the Secretary of State is very likely to have a big interest in enforcing such an order. It would be the Secretary of State who decided to use the power to determine the terms of the direction. If there is good reason to make the direction or order, there is a hell of a good reason to ensure that it is enforced. It goes without saying that the Secretary of State certainly would have that keen interest.
  On the other hand, if one takes not much of a leap of imagination, one would realise that others might have an interest in enforcing such orders. The order could be, for example, that one fire authority is required to make facilities available to another fire

  GC 39
  authority or some other body. That other fire authority—the other body—might want to enforce that. It would be entirely up to it if that were the case. That is the why nothing is said that would stop that happening.
  I cannot make my reply simpler or shorter than that; we are dealing, as I said, with a fairly short provision. It is conceivable that others might want to enforce the order; that could be another fire authority altogether. Therefore, I cannot accept the amendment.
  My noble friend began by referring to the groupings and the fact that he thought that he was due an apology. I do not think that he is due any apology at all; as I understand it, the Clerk in the Chief Whip's Office is still waiting for an apology from him for his conduct and behaviour last Thursday. That is most unfortunate and regrettable.
  I cannot accept the amendment because it would be too restrictive.
  Lord Wedderburn of Charlton: My noble friend the Minister makes a case to which I shall reply in argument. As for what happened last Thursday, he was not there and I do not know what he knows—or what he thinks he knows—about it.
  Lord Evans of Temple Guiting: Will—
  Lord Wedderburn of Charlton: I am not giving way. There was an accusation of conduct that was inappropriate. There was no inappropriate conduct. I have written to the Chief Whip about it, who was not there but who appeared after it had happened. I wrote to him but have not yet had a reply. I shall say no more about it now but if my noble friend the Minister wants to use his privilege to make accusations, perhaps I should read what he said last Thursday, since he will not apologise for it. He said:
  "What I said was not taken in good faith".
  No one said that; he invented it. He continued:
  "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".—[Official Report, 3/7/03; col. GC 286.]
  I am in correspondence with the Clerks and the noble Lord, Lord Tordoff, on that matter. We shall see what is finally said.
  However, that passage is a plain suggestion of impropriety in the way in which we handled the amendments. I repeat that we did what we have done for 25 years and followed the Companion precisely; I shall read it out if the Minister has not read it. We spoke to the officials in the Chief Whip's Office before 12 o'clock, which was the time agreed for the matter; it has nothing to do with quarter past 12. If he cannot read what has been done by 12 o'clock, that is not my fault. We said that we exercise our choice, if we may,
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  to take out our amendments from the list issued by the department, which someone had duplicated—it was a draft—and placed in the Prince's Chamber.
  The draft from a department is for discussion, as the Companion makes absolutely clear, with those who, as my noble friend Lord McCarthy put it previously, are sovereign in their ownership of the groupings of amendments. I appreciate that my noble friend the Minister is used to a Speaker and Speaker's Clerks and so on, but that is a very different procedure. We do not have that procedure. We have what is in the Companion and that is the procedure that we use.
  I am very surprised that the Minister will not apologise or retract. Perhaps he is acting on Lord Montgomery's principle of never withdraw. But that is not a good principle in debate when you can read what you said. It is unfair.
  I turn now to the more important issue of my noble friend's reply. He referred, quite properly, to Clause 1(9), which states:
  "It shall be the duty of a fire authority to comply with a direction contained in an order under this section".
  He said that it is a short subsection, which it is. That is its virtue. But its defect is that it does not tell you what happens if the duty is broken. Nor does anything else in the Bill.
  My noble friend said that the Secretary of State is likely to want to enforce that provision if it is broken and that he has a hell of a good reason to do so. That is what the amendment seeks. He said that those with a keen imagination might consider that others will want to enforce it. One can imagine that kind of situation. We believe that it would be a good thing to restrain litigation on the matter. Where there was a public interest—which is the basis of the Minister's case for the enforcement of the order—it might be a good thing to state that the Secretary of State has to enforce it. If another fire authority wants to enforce it, I imagine it would go to the Secretary of State and state, "Look at what is happening in fire authority X. We want you to tell it to comply with the order".
  I do not mind if the Government want third parties to bring actions for injunctions in this matter—but they should say so. That is all we are asking. We drafted the amendment as the best offer we could make to cure one of the silences in the Bill. The Minister said that the reason why nothing is stated—I do not quite understand this point so correct me if I am wrong—is that it leaves the matter open to all kinds of people to bring actions. That is exactly what the courts complain about. They do not know where they stand. They do not know who is allowed to bring an action or what are the precise terms for a third party to bring an action.
  I apprehend that the Minister may not be aware of this but when a third party brings an action for an injunction—the Minister may have been referring to this—he will go to court and ask for an interim injunction to stop the fire authority contravening the direction. It is important that the Committee should know what that entails. If any Member of the Committee wishes to interrupt and to tell me exactly what that entails, I shall give way.

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  Since 1975, an interim or interlocutory injunction in the High Court is not tested by the same test as most cases in civil actions. Until that date, the applicant for an injunction against a union—or, indeed, a fire authority—preparing to take industrial action had to show that there was a prima facie case that the defendants were guilty of some unlawful conduct or combination. In 1975, in your Lordships' Appellate Committee, the Law Lords changed that principle in the case of American Cyanamid v Ethicon [1975] AC 396.
  Lord Diplock referred to the matter in this way:
  "The court—no doubt—must be satisfied that the claim is not vexatious or frivolous; in other words, there is a serious question to be tried'.
  Since 1975, if an arguable case can be put that there is a serious question as regards illegality on the part of the defendant, the court will issue an injunction where the balance of convenience favours the claimant and the public interest points that way. I assume that the Minister will accept that the enforcement of the order would normally involve such a public interest.
  If the Minister gets what he has just suggested and puts it into the Bill, a third party could bring forward a flurry of litigation—not only every time there is some form of illegality, but every time counsel can make an arguable case that there is illegality. At the moment that is in fact the basis of the quite justifiable objection of trade unions to the procedures of a labour injunction in the courts.
  Further, in a case that I shall quote in regard to Amendment No. 34, after a prolonged examination of complex case law, an interim injunction was held to require unlawful means—and unlawful means will normally include a breach of statute, to which I shall come later. The noble Lord must understand what he is saying. If he wants third parties to have the right to bring those actions in the courts on the basis of an arguable case, then he is opening the door to enormous possibilities for litigation.
  My final sentence is this: this is not a case where a Pepper v Hart assurance will affect the matter. This is a case of what Parliament means, not ministerial assurances, in the Bill that is passed. I say this to each and every Member of this Committee: it is your responsibility to ask what the Bill means, because that will be Parliament's intention. Before I withdraw the amendment, I beg the Minister to consider again to make these silences clear, so that we do not have the enormous number of law suits that inevitably will arise—all lawyers know this perfectly well—if the Government keep the Bill as silent as it is now. I can do nothing but beg leave to withdraw tit:, amendment.
  Amendment, by leave, withdrawn.
  Lord Wedderburn of Charltonmoved Amendment No. 32:
  Page 2, line 26, at end insert—
  "(11) No order shall be made under this Act which could conflict with the terms of the European Social Charter 1961, or of Convention 151 of 1978 of the International Labour Organisation.
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  (12) In his proposals to that body, the Secretary of State shall notify the negotiating body mentioned in subsection (3) of the grounds on which it appears to him that his order will not conflict with the terms of the instruments falling within subsection (11)."
  The noble Lord said: In moving Amendment No. 32 I shall speak also to Amendment No. 38, which addresses a different aspect of the same matter. Amendment No. 32 states that the Bill should provide that no order made should conflict with the terms of international instruments which have been ratified by the United Kingdom. The two that are most relevant are the European Social Charter 1061 and the ILO Convention No. 151. There are other international instruments, but it is generally agreed that these two are the most relevant to the Bill.
  They relate to the need to find resolutions to disputes on relevant matters by negotiation in collective bargaining, as well as all the other matters to which reference has previously been made in ILO Convention No. 151. However, it is important to note that the Secretary of State, when he consults a negotiating body under the terms of Clause 1(3)—which we understand at the moment is to be the National Joint Council—must explain why the order does not conflict with the terms of the instruments falling within that compass.
  Of course, in some cases he can say simply that it is of no relevance. If he says that, it will be enough. But, as your Lordships' Joint Committee on Human Rights pointed out, there will he cases where a question will arise as to the width of the order that could and might be made which would conflict with the provisions in those two international instruments. In those cases, which may well be common, under our provision the Secretary of State would be required to explain the position. That is broadly similar to the circumstance when a Minister certifies that the Bill he is putting forward does not breach the European Convention on Human rights. It requires a little more in the points of reference as to why that is so, but it is broadly in the same form. If we have the wording wrong, then naturally we would want it to be adjusted.
  The reason it is so difficult sometimes for lawmakers in this country to adopt any such reference to the international instruments is that there is a difference here, as against the national jurisdictions in western Europe. In those jurisdictions, such instruments as the European Social Charter and even, in many, the ILO conventions could be referred to and relied on in court as primary sources. Here, that is not so easy to do. They are quotable, but their binding impact directly in the courts in individual litigation is not so easy to enforce.
  The report by the Joint Committee on Human Rights raises the question and says that an order under the Bill could have the effect of falling outside those two international instruments. I interpose "could have the effect". No doubt the Secretary of State will do his best to avoid that. If he avoids that and someone suggests that he has failed, perhaps he should explain why that is wrong, as the amendment suggests.

  GC 43
  In other words, Amendment No. 32 takes international law seriously. It would put it in the Bill, acknowledge it in the Bill, and suggest that the Secretary of State has the obligation to come forward with explanations where someone challenges his understanding of what has happened.
  Amendment No. 38 merely states that the Secretary of State is to pay regard to similar conventions of the ILO. The amendment is defective, in that it does not mention the European Social Charter, which it should do. Under the amendment, he should pay regard to similar international instruments ratified by the United Kingdom when, under the relevant subsections, he decides the appropriate arrangements on a negotiating body which he is going to consult. It is, in a sense, only a procedural parallel for the kind of considerations that fall under Amendment No. 32. I beg to move.
  6.15 p.m.
  Lord McCarthy: I support the amendment. I suggest to the Government that it is inconceivable that they would want to invoke the power in the Bill without explaining that. Presumably, it would be debated in the House and in the country. Presumably, especially the first time it was used, the Trades Union Congress would want to make its case, as well as the union. One of the central arguments would be that those opposed to the case would quote extensively from the Joint Committee on Human Rights and say, "It said that although the power was not intrinsically against either of those international conventions, it could be used in a way that was in breach of those conventions, and that the Secretary of State at the time had, in effect, promised not to do it and could guarantee that he would not do it".
  All those matters would have to have been gone into. The Government had better make a very good case establishing that they are not in breach of either of those conventions and they had better be ready to explain it. Adding the amendment to the Bill would be a sensible way of formalising the process. The Government have nothing to lose by agreeing to it, and I hope that they will.
  Baroness Turner of Camden: I want to add to what my noble friends have said about the two amendments. The Minister referred earlier to negotiating machinery and said that that was not provided for or dealt with in the Bill. In fact, under Clause 2(2)(b), the Secretary of State is required to deal with a negotiating body, and it sets out what constitutes a negotiating body. It states that a negotiating body,
  "is constituted in accordance with what appear to the Secretary of State to be appropriate arrangements for the negotiation of the conditions of service of fire brigade members".
  It would be useful to have the addition that is provided for in Amendment No. 38, which spells out exactly
  GC 44
  what would be "appropriate arrangements". They are, of course, the procedures that are set out in some detail in Convention No. 151, which states:
  "Measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilisation of machinery for negotiation of terms and conditions of employment between the public authorities concerned and public employees' organisations or of such other methods as will allow representatives of public employees to participate in the determination of these matters".
  That explains very clearly what "appropriate machinery" is and it therefore seems appropriate that the arrangement in Amendment No. 38 should be added to the Bill.
  Lord Rooker: I shall deal with the amendments in reverse order: Amendment No. 38 first and then Amendment No. 32. I hope to make the case that neither is necessary without frightening my noble friends even more than they are already, or making them more fearful of what the Government plan.
  Amendment No. 38 proposes that, in determining what appear to him to be appropriate arrangements for the National Joint Council, the Secretary of State must pay regard to the ILO conventions ratified by the UK. Again, I must repeat—I know that this is annoying to my noble friends, but it is true—that the Bill does not allow the Secretary of State to determine the NJC's arrangements. The Bill defines "negotiating body", and one of the parts of the definition indicates that the body must be constituted in accordance with what appear to the Secretary of State to be appropriate arrangements for the negotiation of conditions of service of fire brigade members.
  The purpose of this part of the definition is so that the Secretary of State can be sure that the body is properly constituted and thus properly representative of both sides, with agreed procedures in place. In effect, for practical purposes, that involves the status quo. The Government's view is that, while we have made clear in the White Paper that we think that the NJC needs to be reformed, the current NJC meets the definition in the Bill, which is what we are debating, and that is the body that would be consulted by the Secretary of State. Therefore we do not think that there is any further requirement about what the Secretary of State must consider.
  One could imagine a circumstance in which there was, let us say, a break away—I do not want to add grist to the mill—and part of the employers or a part of the unions set up something else. I am not saying that that is even remotely possible in these circumstances. The fact is that paragraphs (a) and (b) would avoid that. In other words, we are talking about the status quo. We are satisfied with the present arrangement.
  I turn now to Amendment No. 32. It would mean that no order or direction could be made which could conflict with the European Social Charter or with Convention No. 151 of the International Labour Organisation, and that when consulting the negotiating body about his proposals, the Secretary of State would have to make it clear how his proposals

  GC 45
  did not conflict with those instruments. We did of course debate that point at Second Reading. We gave assurances that the Government would exercise the powers in the Bill or the powers that the Bill would confer in respect of conditions of service if we considered it necessary to do so in order to maintain or enhance public safety, if negotiations had failed to produce an agreement. For example, if the detailed negotiations that I have previously mentioned were to fail to produce agreement, we think it would be appropriate to consider using the powers.
  We would certainly not expect the orders to conflict with the two instruments mentioned in the amendment. I am absolutely unequivocal about that, and I am sure that the Secretary of State would make that clear at the time if we were to go clown that road. However, we maintain that we could not stand by if there were further breakdowns that either threatened to lead to a resumption of industrial action or delayed the changes to the Fire Service which we believe will deliver improved community safety.
  As a comfort factor, I should draw attention to the fact that the powers in the Bill are time-limited to two years. So the issue will not be around for ever. In case anyone wants to make a fist of it—no one has done so in this Committee, but I do not want to be accused of creating problems by omission—the noble Lord, Lord Wedderburn, raised the point about Ministers giving their view on compatibility with the human rights convention. Noble Lords may notice that although the declaration I signed is not in the printed version of the Bill, the fact that I did indeed sign such a declaration on 4th June, the day the Bill was introduced, is referred to in the notes on clauses.
  I offer those reassurances on the two points and I hope that my noble friends will accept them.
  Lord Wedderburn of Charlton: First, I never get annoyed —as the Minister suggested I was—by anything. I am simply making an argument which I want to make.
  I should like to read the relevant provision in full. Clause 2(2) states:
  "'negotiating body' means a body of persons which—

  (a) includes both persons representing the interests of some or all fire authorities and persons representing the interests of some or all fire brigade members; and

  (b) is constituted in accordance with what appear to the Secretary of State to be appropriate arrangements for the negotiation of the conditions of service of fire brigade members".

  We have had this point so often that I hesitate to labour it: but it has obviously not got home. I am concerned with what is in the Bill, not with the Secretary of State's intention. For once we have a very clear situation. If we were so unfortunate that the Secretary of State departed from us and some other Secretary of State took over, whether of this Government or any other government, the new Secretary of State would be able to exercise the powers and definitions in the Bill. That is what I am interested in. My noble friend the Minister says, "In effect that paragraph I have read means the status quo". If he
  GC 46
  means that, why not put it in the Bill? What the Secretary of State intends is not the same as what the Bill says.
  The Minister said that the current NJC is the concerned body and that that is the ministerial intention. I am not taking the case of a breakaway union, but the Minister mentioned the possibility. If some future Secretary of State wanted to recognise a breakaway union because it appeared to him that it was part of the appropriate bargaining machinery. under the powers of the Bill he could do so. I do not want that. I do not believe that the Minister wants that. All I am saying is that, if he does not want that, why does he not make the Bill mean what he says he wants it to mean?
  I am not sure that the Minister was giving an assurance, and I do not want to suggest that he was doing anything other than what he said. However, ministerial reassurances are not relevant. If the Bill is enacted in this form, it will say what the law is. This issue is no more a case for Pepper v Hart assurances than the other issues we raised. I think that I am right in saying that the Minister said he was not expecting orders to deviate from the terms of these international instruments. Nor do we. We do not want them to. We want it to be said that they must not do so. That is what we want in the Bill.
  The Minister said that the Bill will not be around for ever. However, the fact that it might happen next year but could not happen two years afterwards does not persuade me. As for notes on clauses, they are not in the Bill and will not even be referred to by the courts except in a very extreme case as to what the Bill means. Once again, it is an assurance.
  I am suggesting that we get rid of these arguments: that we do not leave them to some difficult court process; that we do not have litigation on them, as we may well have in this case; but that we put into the Bill what the Government say is their intended effect. If we do so there will be no trouble and no difficulty. I think that that is a valid argument. However, in view of the Minister's resistance, it is one that we shall have to think about very carefully and return to as necessary on Report. For the moment, all I can do is beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  On Question, Whether Clause 1 shall stand part of the Bill?
  6.30 p.m.
  Baroness Hanham: I have given notice of my intention to oppose the Question whether Clause 1 stand part of the Bill for one specific reason. However, it might be helpful at this stage if I reiterated some of the points that I made earlier in our proceedings. It seems an awful long time ago.
  Our concerns about the Bill relate to a number of the issues discussed in the Committee's two sittings. We are concerned about the muddle between Bills. Following the White Paper, there is now the potential for further legislation. We have had a lot of detailed

  GC 47
  discussion about what that legislation might entail. That legislation could cut across the provisions of this Bill.
  We are concerned about the lack of teeth in the Bill. As I said earlier, there is nothing to prevent a strike happening as the Deputy Prime Minister pronounces on wages and conditions or other matters associated with the Fire Service. There is nothing to prevent anyone from going on strike and absolutely fouling up the Bill's overall intention. Our earlier amendments suggested that that was an error and that some consideration should be given to the anti-strike measures. I am interested to see that that matter is discussed in the White Paper and is not being thrown out completely. There is a recognition that the fire and rescue service, as I think it will now be called, while not a unique service, is among the services that prevents death and contains a high risk factor.
  One of the main reasons why I indicated my opposition to the Question whether the clause stand part is to do with the muddle. I hope that the Minister did not address this point while I was not attending. I wanted to test with the Government the conflict between this Bill and the Local Government Bill which the House is currently considering. Clause 120 of that Bill cascades down to local fire authorities—if I can put it like that—the responsibility for decisions on matters such as closing or amalgamating fire stations or on equipment. I think that such a move is probably broadly welcome. The trouble is that the Bill does entirely the opposite by bringing all responsibility back to the Secretary of State. We are going to have two pieces of legislation which say entirely different things unless one of them either prevents Clause 120 of the Local Government Bill coming into force until this Bill's sunset clause comes into effect and takes it out of force or this Bill says something about Clause 120 of the Local Government Bill.
  I have briefly outlined some of the concerns to which we shall return in greater detail on Report. However, I was advised that there was no other way of discussing this particular point than to oppose the Question whether the clause stand part. As the Minister was unaware that I would oppose the Question, he may need to seek advice. I look forward to his reply.
  Baroness Maddock: May I take the opportunity to seek clarification before we agree that the clause should stand part of the Bill? I know that we are not debating the White Paper, but there are certain things in the paper that the Government could do under the Bill. Indeed, earlier this afternoon my concerns became even more acute when the Minister said—I hope that I have his words right—that the Secretary of State may require one fire authority to make facilities available to another authority.
  Perhaps I may take only one part of the White Paper, page 33, which concerns regional boards and reorganising the service on a regional basis. I think that means that some of this could be done under the terms of this Bill. I know that the Minister has stated that it is not his intention to do so, but as another noble
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  Lord pointed out earlier, we are here to examine what is to become law rather than to consider the intentions of the Secretary of State.
  We have received many reassurances and it is not that we do not believe the Minister—I am sure that he is absolutely sincere—but let us suppose, for example, that something were to happen within the two-year period and we had a general election. Again, after listening to the noble Baroness, Lady Hanham, if she were to become the Secretary of State, then she might want to impose a no-strike rule.
  I know that this is hypothetical, but we are looking at a piece of legislation which is meant to deal with emergencies and we need to get it right in the legal sense. I hope that the Minister will be able to reassure me on these points. I know that other matters have been raised, but these points are serious. We are examining here a law. It does not concern the Minister's intentions, but what that law can do and what someone else might do with it.
  Lord Rooker: I think that Clause 1 is wonderful and I hope that it stays in the Bill. We have not quite debated it to death and no doubt it has quite a bit more mileage in it. If I was a Back Bencher rather than a member of the Government then I could think of another 50 amendments to table, although I do not want to goad anyone.
  Turning to the point of substance, it is fair to say that, when we have this Bill, the Local Government Bill and the White Paper, I can see why these questions have been raised. Here we have a Bill which is taking up precious parliamentary time, and of course it is always tempting to pile into a piece of legislation anything that might be lying around on which there might be some doubt in the future. However, I repeat: this Bill is for a specific purpose and is time limited.
  The noble Baroness, Lady Maddock, remarked that things could be done under this Bill that are indicated in the White Paper. However, they could only be done under this Bill if its powers were activated; that is, either if there was a dispute or the parties did conform to the arrangements that had been agreed. The point I want to make is that this Bill is not for the future. If anything like that was done under this Bill, it would be done in the context of agreements not having been kept to and if we were facing another flare-up of disruption.
  While it is true that certain things could be done under the Bill, I repeat that we do not want to use the powers contained in this legislation. So it would not make sense to use anything in this Bill as an enabling measure, or a pathway, for what has been proposed in the White Paper. I say that because we do not actually want to activate this Bill.
  Baroness Maddock: I am grateful to the Minister for giving way. He has told us the Government's intention. But Members of the Committee are concerned that as the Bill stands certain things could be done. Recently I used an example from the White Paper. It talked about what they will do before 1st April 2004. If they do not have a new piece of legislation they must presumably intend to use this

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  piece. So, my earlier point stands. We are concerned that, if what the Minister says is true, further amendments should make the matter quite clear.
  Lord Rooker: With all due respect, it cannot be necessary. The Bill would be activated only if there is almost an emergency in which the parties could not settle and the dispute had blown up again. That is the only reason this Bill would be used. It is not there to plan for the long-term future of the fire brigades and the fire and accident service. The White Paper will generate a Bill which will do that. I do not deny that if this Bill was activated in the circumstances that I have explained, orders could be given which could say to two fire brigades, "Oi, this is chaos. Fix a joint control room or work together". That could take place because of the nature of the dispute or whatever has come up. But the Bill would only be used in the context of that emergency and for that specific purpose, not for the long-term planning of the fire brigade's service. That is the point.
  One is almost in parallel worlds. We have this Bill that we do not want to use; it is there as a backstop just in case. There is enough evidence around to say that we need this comfort factor. At the same time, we have the White Paper and, as the noble Baroness, Lady Hamwee, said, we will be back on Thursday with the Local Government Bill. That Bill stands on its own. It is passing through the House. I do not know when that clause was inserted in the Bill or whether it was there from the beginning because that Bill was consulted on as a draft Bill last summer, just after I arrived at ODPM. I am no expert on its background. The issue of Section 19 stands or falls on its own. It is our intention to leave it in the Local Government Act, as I hope it will become. It would then not be subsumed in any new Bill as a result of the White Paper.
  From that point of view, one could argue that we are open to criticism. If there were a flaring up of a dispute, we would have this Bill activated. We would have the Local Government Act as it would be hopefully on the statute book, and coming along the next conveyor belt would be a Bill based on the White Paper. I fully accept that. But those are circumstances that the Government do not envisage. We do not want those circumstances because we do not want this Bill to be used. I accept that. I can understand that from a reasonable standpoint we are open to criticism. I do not think it is justified, but if I were sitting on the other side of the Chamber, I would make the same points with some justification. We do not want to use the Bill. It is there in the locker as a longstop. It would be absolutely barmy to put material in this Bill which affects future decisions of the Fire Service when we have just published the White Paper. That is why the Bill is only two clauses long and, hopefully, as I say, will stay on the statute book and not actually get its pages opened.
  I can make a case for that. This is a Bill we do not want to use, but we think for the reasons I have given that it is necessary to have it in the locker for the next couple of years.
  Baroness Hanham: I thank the Minister for that reply. I do not think that it will do, with the greatest
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  possible respect because the Local Government Bill, if all goes well, will be on the statute book presumably within the next six to nine months at the very most, well within the compass of the time scale of this Bill.
  I ask the Minister to consider what would happen if the powers had already passed down to the local fire authorities—if they had made or were beginning to make one lot of decisions. Something blows up—I do not mind what—perhaps with the on-going negotiations. Is the situation such that the Secretary of State could potentially blast in and say to those local authorities: "Never mind what the Local Government Bill says. Sorry, guys, that is completely irrelevant at this moment because we now have a crisis and I am taking over and these are my instructions".
  I think the Minister will be in court. There is no clarity about which comes first and what overrides the other. Somewhere within the next few weeks, we perhaps need amendments to be inserted and for the Minister to take advice to sort out what that process is.
  Potentially, I see lots of roads for this all ending up in the courts; the fact that the unions can actually define what the Minister says will end them up in court. I know the Minister does not want to use the Bill, but I think we must assume that any legislation that comes forward will potentially be used. That is why I moved that Clause 1 should not stand part. Clearly, I cannot do anything about it now, but the Minister may like to come back.
  6.45 p.m.
  Lord Rooker: I genuinely want to respond to the noble Baroness. I am speaking from memory now. When the Local Government Bill was in Committee, I do not think that we debated the Section 19 change. To the best of my knowledge, I do not think that we did. In other words, it was accepted in Committee. We are going to have the Report stage. I shall take advice so that on Report, if it is appropriate, I can clarify the situation. I accept that, although the purpose is different. Section 19 is abandoned, as it were, because the Secretary of State is apparently involved in the minutiae of changes. Transferring one appliance from one station to another needs the Secretary of State's permission, which is absolutely barmy. That is nothing to do with the dispute, by the way. It all comes back to Whitehall, which is absolutely crazy when there are professional people out there running the Fire Service.
  I suspect that it would be possible even to have localised disagreements settled under the disputes procedure rather than causing the Bill to be activated. As I say, the Secretary of State would have to have good reasons to activate the powers in the Bill. Those reasons would be wholly rational. If people argued it, maybe there would be court action, but there would certainly be parliamentary comment, to say the least. The two things do not need to be confused.
  Bearing in mind that I was not able to say anything about Section 19 on the Local Government Bill, and that we shall have a couple of days or more on Report, I am quite happy to see whether it is possible to say something without necessarily having an amendment.

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  There may be a way; noble Lords can do anything in this House, I have discovered, as there are no rules. It is highly likely that I shall be able to put a paragraph on the Order Paper that I hope would answer the question, because it is a fair one that needs answering. It would partly be to explain what looks like a contradiction, although I do not think that it is.
  The question deserves an explanation, however, bearing in mind that when the other place debated the Local Government Bill, it was a long time ago and this Bill was not around. Secondly, when it debated this Bill, the White Paper was not around. The Bill happens to come to this House when all three are around at the same time, and the questions are quite legitimate.
  Lord Wedderburn of Charlton: Will the Minister look at Hansard for this House for 24th June, cols. 80–85, where he will find a quite important debate on Clause 120 of the Local Government Bill? That was the debate to which my noble friends and I referred when we moved an amendment concerning consultation. It is quite true that the Minister did not himself deal with the debate; it was dealt with by the noble Lord, Lord Bassam of Brighton. So far as concerns there being no rules in this House, those who have read the Companion and the Standing Orders will want the Minister to look again at that remark.
  Lord Rooker: I was talking about the Local Government Bill. That is where the legislation is, and we did not debate the subject during our four days in Committee.
  Noble Lords: No.
  Lord Rooker: No, the noble Lord is talking about the Second Reading of this Bill.
  Noble Lords: No!
  Lord Wedderburn of Charlton: If the Minister wants it, I have a copy here of the debate on 24th June, at cols. 80–85. I am sorry, but if the Minister makes these propositions to the Grand Committee, we want to be able to rely on them. With the greatest respect, I suggest that he should admit that he is wrong.
  Perhaps I may put the proposition clearly and simply. The Local Government Bill was debated in Grand Committee in this House on 24th June. Clause
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  120 was debated significantly and it is relevant to this Bill. I do not agree that Clause 1 should be dropped from the Bill. It would be a nonsense to do so. That is the intention of a wrecking amendment. But the noble Baroness has a point when she says that two Bills have been introduced. We said in a previous amendment, "For goodness sake, can't you just relate the two?". Whenever the Bills are brought forward, they are both put before us. One was debated on 24th June and the other was debated in proceedings on this Bill. I simply want the record to be straight.
  Lord Rooker: The record can be straight. There is no need for my noble friend to shout at me. I was quite wrong in what I said about the matter not having been raised. I looked at my noble friend's Second Reading speech on the Fire Services Bill and believed that that was the reference. The matter was raised during debate on the Local Government Bill by my noble friend Lord Bassam. I shall have another look at the report of the proceedings, but I imagine that the answers were satisfactory and that the matter was accepted at the time.
  Baroness Hanham: I believe that the answer is for me to move an amendment on Report which encompasses the problems that I have raised.
  Clause 1 agreed to.
  [The Sitting was suspended for a Division in the House from 6.52 to 7.2 p.m.]
  Lord Lea of Crondall Lord Lea of Crondall moved Amendment No. 33:
  After Clause 1, insert the following new clause —
  "INTERPRETATION OF JUNE 2003 AGREEMENT
  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.
  The noble Lord said: The Minister indicated earlier that he would accept the amendment. I beg to move.
  Lord Rooker: For the reasons I gave earlier, the Government are happy to agree to the amendment.
  On Question, amendment agreed to.
  Lord Rooker: This may be a convenient moment for the Committee to adjourn until Monday next at 3.30 p.m.
  The Committee adjourned at three minutes past seven o'clock.