§ 10.5 p.m.
§ Report received.
§ Baroness Turner of Camden
moved Amendment No. 1.
Before Clause 1, insert the following new clause—
§ "ORDERS MADE UNDER THE ACT
- (1) The powers of the Secretary of State to make orders under this Act concerning conditions of service or directions to fire authorities shall be exercised only after a declaration published by him that an emergency exists or is likely to exist.
- (2) In this section, "emergency" means a natural disaster or other event or series of events affecting the fire service or its operation which is or may be, in the opinion of the Secretary of State, likely to disrupt supplies of energy, or which presents any other serious threat to human welfare, the environment, the political, administrative or economic stability or the security of any place or locality, or in which the use of troops is permitted.
- (3) In his declaration the Secretary of State shall state the nature of the emergency."
§ The noble Baroness said: My Lords, I regret having to deal with this rather important issue at five minutes past 10 tonight. I believe it is a very important amendment.
§ My noble friends and I would like this new clause included in the Bill at the very beginning. The Minister is well aware of the fact that I and a number of other noble Lords do not much like this Bill. The Minister knows perfectly well why we do not like it. That was made very clear on Second Reading. As it stands, the Bill gives the Secretary of State power to impose terms and conditions of employment on members of the fire service workforce. These powers are required, apparently, despite the fact that the recent dispute has been settled by an agreement acceptable to both sides.
§ On Second Reading the Minister referred to Article 6 of the European Social Chapter, which requires states to take steps to ensure the effectiveness of the right to bargain collectively. He also referred to Article 8 of the ILO Convention 151 which states that settlement shall be sought through negotiation between the parties. He argued then, and has since 402 argued throughout the passage of the Bill, that although its terms do indeed give powers to the Secretary of State to impose terms and conditions— something which my noble friends and I regard as a breach of the Government's commitment under the European Social Chapter and ILO conventions—the Government would use these powers only in extreme emergency if, as he put it, it was necessary to do so in order to maintain or enhance public safety.
§ Moreover, the Bill has a sunset clause: it is time-limited. At the end of the time it will be consigned, as he put it, "to the rubbish bin".
§ I say at the outset that while I may not like this Bill I have no doubt at all about the right of the Government to get their legislation through Parliament. In the light of what the Minister said in Committee, we acknowledge that in certain circumstances it could well be necessary for the Government to have powers of the kind envisaged in the Bill.
§ Despite our concern to try to maintain workers' rights—particularly the hard fought-for and won right to have terms and conditions decided by collective bargaining by the union to which most belong—we are not endeavouring to wreck the Bill. We believe the Minister when he says that the Government hope never to have to utilise the powers in the Bill; that it is entirely a temporary measure and simply will not be there when the sunset is reached.
The problem is that that is nowhere stated in the Bill except for the sunset clause. We want to ensure that the Government have the emergency cover that they need while at the same time ensuring that there is adequate protection for the rights of the workforce. It seemed to us that the best way of doing that would be to spell out the circumstances in which the powers in the Bill would be used. So our amendment says that the powers will only be exercised after a declaration is published by the Secretary of State that an emergency exists or is likely to exist. In his declaration he would state the nature of the emergency. Subsection (2) of our amendment spells out as clearly as we can, utilising wording which I believe exists in other legislation, precisely what is meant by an emergency such as,
a natural disaster or other event or series of events affecting the fire service or its operation which is or may be, in the opinion of the Secretary of State, likely to disrupt supplies of energy or which represents any other serious threat to human welfare",
§ and so forth.
§ That seems to me to give the Secretary of State the emergency cover that he needs and is in line with what the Minister said in Committee was required. As I have said, we do accept what the Minister has said about the limited nature of the Bill and the extreme reluctance of the Government to utilise the exceptional powers that it gives the Secretary of State.
§ Good intentions may be fine, but nothing like that appears in the text of the Bill. This is legislation and governments and Ministers change. A future Minister, perhaps not of this Government, may feel quite differently and he would then have at his disposal powers which he possibly would be only too happy to use. An external event plus media clamour and the 403 sunset clause could disappear. These seem very unlikely events, but we are concerned to safeguard employee rights while at the same time meeting the valid points that the Minister made in Committee. I beg to move.
§ Lord Campbell of Alloway
My Lords, I apologise to the House for not being here earlier. I had forgotten where my speaking notes were; fortunately I happened to find them. In opposing the amendment, the sincerity and motivation of the noble Baroness, Lady Turner of Camden, who is perhaps the only Member of your Lordships' House with extensive practical experience of the bargaining procedures and who has sat judicially under the chairmanship of the High Court judge on the Central Arbitration Committee, is not called into question; nor indeed is that of any noble Lord disposed to support the amendment.
At the outset, may I seek to establish common ground? The Government must have their business—yes—but only after due scrutiny by both Houses. There was no due scrutiny of the Bill in another place, as was spoken to with total accuracy by the noble Lord, Lord McCarthy, on Second Reading. None of the amendments on the Marshalled List was considered in Grand Committee, at which the usual attendance—apart from the odd Minister—was six for three days, which is not a very satisfactory method of due scrutiny.
There will be insufficient time today, through no one's fault, for due examination of the amendments. Clause 1 as drafted fails to express, as the noble Lord, Lord Rooker, sportingly and fairly recognised in Grand Committee, the true intention of government as he explained it to the House regarding the exercise of powers of the Secretary of State. It is therefore common ground that Clause I cannot stand unamended. If not amended, must it be left out under Amendment No. 27, which, if moved—which I hope will not be necessary—could well attract the support of noble Lords in favour of Amendment No. 1?
The question arises—to which I shall not speak at this stage—whether Clause I should be amended to apply only to emergency situations as proposed by Amendment No. 1, or whether two regimes should be set up: one for an immediate emergency and another where there is no such emergency, as proposed by Amendments Nos. 2 to 7, and Amendment No. 13, to which I do not speak. But the conflict between those disparate approaches inevitably involves my opposition to Amendment No. 1.
Putting that aside for a moment, let us deal with the substantive objections to Amendment No. 1. As such they are serious, and, with respect, they warrant your Lordships' attention. The amendment limits the powers of the Secretary of State to make orders and give directions only in an emergency situation. It heralds the introduction of a novel, intricate, complex structure of amendments—Amendments Nos. 10 to 18, 14 to 18, 20, 22 to 25—which would inhibit the due exercise of requisite, plenipotentiary powers of a Secretary of State having instant effect in the event or likely event of a terrorist attack, and that is not 404 acceptable. It also heralds Amendments Nos. 28 and 29, which inhibit enforceability of orders and directions given by the Secretary of State in a state of emergency, which is wholly inept. Of course they must have immediate effect. It precludes the Secretary of State from giving directions on the essential reorganisation and restructuring of the fire brigade services which must ensue when there is no state of emergency, to prepare against the state of emergency of terrorist attack or the likelihood of such attack, when one day it shall inevitably arise.
The requirement as to a declaration of an emergency such as a terrorist attack or the likelihood of such attack to be made by the Secretary of State, based on advice and intelligence which may not he disclosed, would not be in the public interest. In such a Situation, which could occur at any time and any place, the Secretary of State must retain plenipotentiary, emergency power and must be trusted. Speaking for myself, I trust him or his successor, whoever that may be, of whatever party, to exercise such powers in good faith and with propriety.
Amendment No. 1 and the implementation proposed in the amendments under the name of the noble Lord, Lord Wedderburn of Charlton, afford no effective means and no attempt at any effective means to seek to avoid disruption of the fire brigade services by collective action in any emergency situation as defined by subsection (3).
I said that I would make a shortish speech. I end with one question which I believe is a fair one. On any objective analysis, could any government accept Amendment No. 1 as it stands or as proposed to be implemented?
§ 10.15 p.m.
§ Lord McCarthy
My Lords, we clearly failed dismally in Committee to make clear to the Government how unusual and unique we find this Bill. This Bill is presented almost as though it were an extension or a return to the 1947 legislation passed by the 1945 Labour government. It is not that in any way. It introduces into industrial relations a set of particular and special provisions which are at this moment to apply to a section of the fire service. That is again something unique. As far as I know, all previous general restrictions of this character, for example in the First World War and the Second World War, applied across the board. However, the Government are selecting the fire service—members of the National Union of Fireworkers—for these special provisions. It is that argument, as much as anything else, which we have been trying to press upon the Government. We have dismally failed.
The amendment is one of a series which asks the Government to look more closely at what they are doing, and to see if they cannot postpone the measure, giving a general consideration to their purpose, which is what we tried to do at Second Reading. Will the Government look at particular aspects of the Bill and limit its application in various ways? The Minister, when talking about the Bill at various stages, made a 405 number of replies in answer to our attempts to make him describe the circumstances in which the powers under the Bill would be invoked. It might be that he would rule out certain circumstances, if not rule them out on the face of the Bill, but that was not the case; or he might say that the Government were thinking more of using the Bill in certain areas.
The Minister made a number of statements. We are asking him to think again about those statements. Most of those responses suggested that there would be some kind of emergency in existence before the Government would use the Bill. We have taken from his statements to that effect—if one looks at subsection (2)—a range of circumstances which cover virtually every kind of emergency. If we have left some out, then let the Minister tell us, and we shall put them in. We say:In this section, 'emergency' means a natural disaster or other event or series of events affecting the fire service or its operation which is or may be, in the opinion of the Secretary of State, likely to disrupt supplies of energy, or which presents any other serious threat to human welfare, the environment, the political, administrative or economic stability or the security of any place or locality, or in which the use of troops is permitted.".So we try in this amendment to spell out what would be the broad circumstances in which one could reasonably argue, in the light of what he had said, that there was an emergency situation. I asked the Minister to look at that, and he said that he was thinking that,a crisis situation will have required the Bill to be used".Unfortunately, at that stage I thought that he might continue and define what that crisis would be, but he clearly reflected on the awful matters that he had in his mind and thought that he should not tell us. He said:If I started thinking aloud and giving examples of what might happen, I could be accused of giving horror stories".—[Official Report, 3/7/03; col. GC 266.]That is extreme, is it not?
§ Lord Campbell of Alloway
My Lords, is the noble Lord, when he refers to the observations of the noble Lord, Lord Rooker, referring to col. 50 of the Grand Committee, where, from memory—I have it noted somewhere—the Minister said, "Look, it isn't the intention to use this Bill, other than in a state of emergency. We don't want to have to use it".
§ Lord McCarthy
My Lords, I am talking about col. 262 of the Grand Committee Hansard. The noble Lord, Lord Rooker, stated that the Bill was about taking,prompt action in order to protect the public".—[Official Report, 3/7/03; col. GC 262.]He also stated at col. 265:I am not saying that there is a legal use of the word 'emergencies', but the Bill is a temporary measure. It is time-limited and would be used onlyin a crisis situation.
I do not suppose for a moment that the noble Lord, Lord Rooker, would deny that most of the circumstances in which he considered the Bill might be used fit our definition of an emergency. The trouble is 406 that that is not the only thing he said. In responding to the question of whether the use of the Bill was to be confined to an emergency, he said that,it is a long stop designed for a quite specific purpose of dealing with the recent dispute … if the timetable that has been negotiated is not maintained".—[Official Report, 3/7/03: col. GC 261.]In other words, such a situation could occur next week or the week after if the Government decided that the union was not co-operating sufficiently with the timetable of negotiations for the next stage of the 2003 agreement, or if the Audit Commission decided that insufficient savings were being made. That seems to me to be a quite different set of circumstances. There might not be a dispute. There certainly might not be industrial action. I say all this in the hope that the noble Lord, Lord Rooker, will reassure me. The Bill could be invoked because the Government considered that insufficient savings had been gained in the next stage of the productivity deal. That is a quite different set of circumstances from a crisis.
The amendment is an attempt to get the Minister to tell us something more about the extent to which, in any meaningful sense of the term, the Government intend to invoke the Bill solely in an emergency. If that is the case, why cannot they accept our amendment?
§ Lord Wedderburn of Charlton
My Lords, I should like to say four things about the nature of this amendment, which has been very carefully thought about and, in fact, argued about, among the movers of it. First of all, on our express wishes, it stands alone in the groupings because it has nothing to do with most of the other amendments to Clause 1. It is nothing to do with ballots. It is nothing to do with abolishing the right to strike and so on. It stands alone and it refers to a series of defined emergencies, disasters or crises—whatever one likes to think of them as—which have been built on a certain amount of study of previous statute. It refers to disasters which in the opinion of the Secretary of State are likely to occur, which we thought included terrorism but also a whole series of other things. We ask in the third part of the amendment for a declaration which need state only the nature of the emergency in general terms. I am happy to give way.
§ Lord Campbell of Alloway
My Lords, how can it stand alone if it makes no provision for resolution of a terrorist attack? How can it stand alone without the means of resolution?
§ 10.30 p.m.
§ Lord Wedderburn of Charlton
My Lords, I am much obliged to the noble Lord. He will understand the point when he reads Hansard and will see that the amendment stands alone. It covers threats of terrorism, but a great many other things too:any … serious threat to human welfare, the environment, the political, administrative or economic stability or the security of any placein the jurisdiction, or a situation in which the use of troops is permitted.
407 The reason why the amendment contains those various elements is as follows. The Water Act 1989 gives emergency powers where there is a threat of disruption of energy. The civil contingencies Bill which the Government are gradually putting into the processes of Parliament—and which I hope will be enacted fairly soon—includes the serious threats referred to in the amendment, very carefully set out; and the position in which the use of troops is permitted is covered by the Emergency Powers Act 1964, and indeed by powers under the prerogative. Those, we thought, were proper precedents to which we could implicitly refer in building up some description of emergency. Some of us thought—I am not sure that we all agreed on this—that the restructuring of the fire service was for the big Bill that is to follow the White Paper, although it will be in the Government's mind. The White Paper having been published, it cannot be absent from the Government's mind and policy.
Having reached a broadly common position on those matters, we then looked with enormous care at what had been said in Grand Committee—about which the populace at large is, unhappily, largely ignorant—and at what happened in the other place, which to us is in a way the most important.
When the Bill was presented for Second Reading in another place on 8th May, my right honourable friend the Deputy Prime Minister said that he was reluctant to produce it. I want to refer to government statements in another place and in this House, because the amendment is a genuine attempt to understand the Government's position in the light of what they have said about their wishes—not from snippets; if I quote any matter which is thought not to be in context I shall be happy to read out the context. The Deputy Prime Minister said, quite naturally at the time, that although he would have preferred not to introduce the Bill,after 12 months of negotiations and three separate pay offers, the fire dispute has reached deadlock. Legislation is therefore necessary in the public interest and to protect public safety".—[Official Report, Commons, 8/5/03; col. 856.]On 1st May, he wrote to the Joint Committee on Human Rights:I would even now prefer the matter to be settled by agreement and without my intervention. However this appears unlikely …. I am seeking the powers in the Bill because settlement cannot be achieved through negotiation".That was the first position.
The second position, when the Bill came to this place, was that a settlement had been reached. Government spokesmen—if I may put it in this phrase—accentuated the fact, which in our view is a normal fact of life in collective industrial agreements, that a large number of matters still had to be worked out under the settlement. It would be a remarkable settlement that did not have to have matters worked out under it. The settlement referred to the procedure for doing that in the national joint council Grey Book.
I want as fairly as I can to quote what has been said by my noble friend the Minister in this connection. I shall not repeat at length the quotations cited by my noble friend Lord McCarthy. My noble friend Lord Rooker 408 has been the government spokesman on this Bill on all important matters, and therefore I can only quote him. At Second Reading on 19th June, he said that the Government preferred a negotiated settlement. He went on:This is so that they can move forward in partnership to help deliver a modern fire service, which can prevent fires from starting in the first place and save more lives when responding to fires that occur".—[Official Report, 19/6/03; col. 1015.]
We entirely accept that statement of policy. My noble friend went on to say that the settlement was dependent on further negotiations on some key issues. He later said that one primary object was to,ensure that the public is properly protected. That is why we intend to proceed with the Bill".Then he put the issue slightly more widely, as my noble friend Lord McCarthy said:I can assure the House that the Government would exercise the powers that the Bill would confer in respect of conditions of services only if we considered it necessary to do so in order to maintain or enhance public safety; and if negotiations failed to produce an agreement". —[Official Report, 19/6/03; col. 1015–6.]When the issue came to Committee my noble friend Lord Rooker made the two propositions that my noble friend has referred to. I want to quote him exactly. He said:I am not saying that there is a legal use of the word 'emergencies' but the Bill is a temporary measure. It is time-limited and would be used only in circumstances that would almost amount to an emergency".—[Official Report, 3/7/03; col. GC 265.]Then at col. 266 he referred, as my noble friend said, to the Bill being used and orders being made in,a crisis situation which will have required the Bill to be used".Then he said:I have to repeat the fact that it would be quite exceptional circumstances in which we had to operate the Bill. We make no bones about it. I have used the words that the Secretary of State would have to impose a solution to a dispute because he would consider that to be in the public interest".He said that if the parties agreed to arbitration,it would be extremely unlikely that the Secretary of State would want to intervene at that point to exercise his powers to fix or modify conditions of service if there was a realistic prospect that the parties could, by seeking arbitration, resolve their differences".—[Official Report, 3/7/03; col. GC 282–31.]Then in col. 204 on 14th July, he said:The point I am making is that the Bill would be activated only if a disaster arose of another dispute occurring with no sign of being settled in which case the Secretary of State—he has made this absolutely clear and we make no apology for it so there is no surprise in that regard—would impose a settlement as a way of drawing a line under the dispute".I pause to point out that the likelihood of a disaster arising is quite clearly covered by our amendment. We took account of that passage when we drew it up.
In col. 205 the Minister said that,it would take several months to process the current agreement so that it becomes fully operable. Therefore, we need this as a backstop. I am not saying that there are any blank cheques here. It is not an agreement just because two parties agree that we pay the Bill; that is a conspiracy against the public. To that extent, we would not actually foot the Bill".409 That passage came after—and this is what I think the noble Lord, Lord Campbell of Alloway, was perhaps implicitly referring to; I apologise if I am wrong, but I thought it was—an intervention by the noble Lord, Lord Campbell of Alloway. He said:But if the parties do not agree with what we"—meaning the Government—want them to do, we shall impose the Bill".My noble friend Lord Rooker said:That is entirely the case. The noble Lord expressed the matter perfectly".He said that,parties could have a sweetheart agreement",and that if they did and that it offended government financial arrangements they would say,Sorry, we are not paying the bill".But in that same context he said that,if they reached an agreement which was absolutely contrary to the financial settlement for the department and went against what had been agreed previously, we would say, 'Hang on a minute'. As I say, the Bill is intended for use in an emergency situation".—[Official Report, 14/7/03; GC 204.]He also added they would allow the Secretary of State to ensure fire authority assets paid for by the public are available to those providing emergency fire cover in the event of further strikes.
I appreciate the point that the Minister of course had a view about the serious matter of the parties reaching an agreement of which the Government did not approve. We come to that in a later amendment. In that sense, there is a link with that later amendment but no other. Most of those passages rely on the intimation that the Government would wish to use their orders under the Bill in a crisis or emergency or—to use the exact words—"almost an emergency" situation. If we have got it wrong in subsection (2) of our amendment and the description of likely emergencies or forthcoming emergencies is inadequate, I will be happy to accept any manuscript amendment now from the Government, or indeed to have them put down their own form of words on Third Reading.
I think that the amendment is a fair representation of, at least, the core of the Government's position. We do not think—we will come to this on later amendments—that that being absent from the Bill is satisfactory. Nor do we think, especially in the light of a decision, to which I shall refer, in your Lordships' Judicial Committee on 10th July, that statements of Ministers as to the Government's intention, however genuine, proper, honest and straightforward, are the same as legislation. The House of Lords judicially has recently had great moment, in a constitutionally vital case, to refer to that difference. I do not go further with it now; it will come later. I support this amendment and I hope it will be taken seriously as an attempt to bridge a gap which otherwise makes the Bill a very dangerous precedent as far as industrial peace is concerned.
§ Lord Northbrook
My Lords, I support my noble friend Lord Campbell of Alloway in his opposition to 410 this amendment. It seems to be restricting the powers of the Secretary of State in the Bill to an emergency situation. This is unnecessary in this particular case and therefore I support my noble friend.
§ Lord Rooker
My Lords, without seeking to wind anybody up, this is the second time today, on the second Bill today, that words I have used in Hansard are not taken at face value and there has therefore been an attempt to put them on the face of the Bill. The previous attempt was by the noble Lord, Lord Jenkin of Roding, on business improvement districts. It is exactly the same point: "Minister's words are not worth tuppence ha'penny; we are all not serious; and what is more, we come and go, other people take our places, and therefore our words are worthless".
I want to be able to address the points in the amendment, which I do not think is necessary at all. We have looked hard at this over the summer—or what has passed for a summer. We cannot see any justification for amending Clause 1 in this way. I recognise that the amendment responds to some of the discussions in Grand Committee. Inevitably it would, because of the quotes that have been used. Obviously the amendment introduces a trigger that would mean the powers in the Bill under Clauses 1(1)(a) and 1(1)(b) could be used only after the Secretary of State had declared that an emergency existed or was likely to exist. The definition of emergency runs wide, as we have heard explained: natural disasters, threats to human welfare, administrative or economic stability, and circumstances in which the use of troops is permitted. I can see that there is a common thread and I acknowledge that the definition would cover many, some might even claim all, of the circumstances we have faced over the past year.
However that points up the problem with that kind of provision. It is difficult to be really sure that it covers all eventualities and therefore it inevitably leads to uncertainty and the opportunity, I might add, for unreasonable arguments and challenge at the time it is used. That is what is at the root of this amendment: it provides an opportunity for unreasonable arguments and challenge to stop the operation of the Bill. The Government have been quite clear: we want to be able to take practical action if the dispute flares up again. Good progress has been made in the negotiations, so far as I am aware. I checked today: there are amicable discussions going on. That is good; that is what we expected from professionals on both sides. However, we believe that it is in the public interest for us to be able to take action if it does flare up again. There are strong arguments against allowing any dispute to drag on without conclusion—arguments that run from the possible effect on public safety to the demands placed on those in the Armed Forces who have been deployed to provide alternative emergency cover. We believe that it is not necessary to put those issues in the Bill.
There are strong arguments for allowing the Government to determine the terms on which a dispute of the kind that we saw earlier this year should be settled. That is not to say that the Government know best, but that it is they who must pick up the bill. 411 We have responsibility for public safety and public finances. That is why we think the Government are in the best position to determine the kind of situation in which a dispute could be settled.
Only in a very serious situation, taking all those factors into account, will we use the powers. As my right honourable friend the Deputy Prime Minister said, we do not want to use the powers in the Bill, but we feel that we need to have them just in case. We have said all along that we hope we will not have to use them. We have no secret plans to use them; nor have we plans to bring about circumstances causing us to use them. We have no agenda whatever, but we think it would be irresponsible not to have the powers, in the light of the circumstances of the past 12 months
Defining in advance every possible circumstance that might constitute a sufficiently serious situation—what the amendment calls an emergency—is a step too far. We do not want to get anywhere near an emergency before taking action. If there were an emergency, people would ask us why we had not taken action sooner. I cannot therefore accept the amendment and I invite my noble friends to withdraw it.
§ 10.45 p.m.
§ Lord Wedderburn of Charlton
My Lords, I do not know whether my noble friend has sat down, but perhaps I may ask him a question. He said that the words of the amendment would allow for a successful challenge in the courts. If, in the terms of the amendment, the Secretary of State made a declaration, which may be no more than one or two lines, about the likely disaster, emergency or crisis that he foresaw—that is all he has to do—what would be the nature of the likely successful challenge in the courts? I am sure that my noble friend has had advice on that.
§ Baroness Turner of Camden
My Lords, I thank the noble Lords who contributed to this short debate on what I regard as one of the most important items of the Bill's Report stage.
In response to the noble Lord, Lord Campbell of Alloway, I would have thought that the wording that we have produced, particularly in subsection (2), entirely meets his problem about the possibility of a terrorist attack. The amendment was deliberately worded to do precisely that.
I am very disappointed by the Minister's response. He says that the amendment indicates that we do not take the Minister seriously, but we tabled the amendment in the first place because we have taken him seriously. I moved similar amendments—perhaps not so precise—in Committee. When the Minister told the Committee that it was necessary to have these emergency powers, I said quite precisely that I understood that it was necessary to have emergency powers but that was nowhere stated in the Bill. I said that for that reason my noble friends and I would 412 consider the matter and try to table an amendment to meet the valid argument that there must be powers to deal with an emergency.
Throughout the Committee, the Minister referred repeatedly to the possibility of a crisis or emergency. It was in order to meet those points that we drafted this amendment and decided to proceed on that basis. I am very sorry to learn that, although our intentions were clearly to meet the Government's position, they have not been acknowledged by the Minister. However, I fear that there is no point in pressing the issue further at this stage. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Lord Campbell of Alloway
moved Amendment No. 2:Page 1, line 3, at end insert "if requisite in the public interest of immediate implementation in a state of emergencyThe noble Lord said: My Lords, I will also speak to Amendments Nos. 3 to 7 and Amendment No. 13 as a package. I acknowledge with gratitude the support of my noble friend Lord Northesk on this occasion from these Back Benches.
The object of this package of amendments is to set up two regimes, as already explained. The first regime, in a state of immediate emergency, affords plenipotentiary powers to the Secretary of State to impose conditions of service and to give directions to fire authorities. It also removes inhibitions as to the exercise of such powers under subsections (3) and (8) of Clause 1 of the Bill. In other words, it makes a more extensive exercise of power in an emergency than exists at present. In that context, Amendment No. 9 would appear to delay the exercise of such powers in an emergency and could well appear to warrant clarification.
In the other regime, when there is no such state of emergency, conditions of service may be imposed only by virtue of Amendment No. 6 in implementation of the regime proposed by Amendments Nos. 4 to 7, and the powers to make orders under Clause 1(5) are removed. The giving of directions to the fire authorities is made subject to consultation as provided by proposed new paragraph (b) in Amendment No. 4.Of course, that is when there is no state of emergency. When there is a state of emergency, there is plenipotentiary power.
Why the need for these amendments? The main objection to Clause 1 is that, when there is no state of emergency, the Secretary of State may impose or threaten to impose conditions of service by decree without having had any resort to collective bargaining. According to the report of the Joint Committee on Human Rights—not when I was a member of it—House of Lords Paper 118, a significant risk of violation of Article 6 of the European Social Charter and Article 8 of the ILO Convention No. 151 is involved, of which the Deputy Prime Minister was informed by letter on 8th April this year. That is the main objection.
The subsidiary objection is a matter more within the remit of my noble friend Lady Hanham than myself. It arises from the giving of directions to the fire authorities, if there is no state of emergency. My noble friend Lord Dixon-Smith said at Second Reading that, since the 1970s, 413the fire service has ossified".—[Official Report, 19/6/03; col. 1035.]It is wholly requisite that directions be given as to reconstruction of those services in the public interest, if only to ready ourselves for the inevitable attack that, one day, shall come.
There is a muddle. It is no fault of the noble Lord, Lord Rooker, that there is a muddle, but the fact is that it relates to the means of implementation under this Bill and the Local Government Bill. The noble Lord, Lord Rooker, frankly conceded on the second day in Grand Committee that he could understand that,from a reasonable standpoint we are open to criticism". —[Official Report, 7/7/03; col. GC 49.]He said that the Local Government Bill stood on its own and that the Government did not wish to use the Fire Services Bill. I hope that the noble Lord will understand that paragraph (b) of Amendment No. 4 is designed merely to try to avoid that muddle by introducing consultation before such directions are given, when there is no state of emergency.
It is late at night, but if noble Lords take the Bill in one hand, they will see that Amendment No. 2 would limit the emergency situation by inserting the phrase,if requisite in the public interest of immediate implementation in a state of emergency".Amendment No. 3 would remove the inhibiting provisions of subsections (3) and (8) of Clause 1, which should not apply in a state of emergency but should apply if there is no state of emergency. Amendment No. 4 makes it plain that,Save and except in a state of emergency to which subsection (1) applies, the Secretary of State may not by virtue of this Act fix or modify conditions of serviceother than as provided in the exceptional situation set out in Amendment No. 6. In that event, the inhibiting provisions in subsections (3) and (8) should not apply. Amendment No. 6 relates to the only situation in which the Secretary of State may make an order by decree, if there is no state of emergency—that is if,collective bargaining has failed and no application has been made to a mandatory arbitral tribunal for the resolution of the dispute, or the award of the tribunal established under subsection (1C)" —Amendment No. 7—has been ignored or rejected".Those are requisite enforcement provisions for the orders of the Secretary of State where, in those exceptional circumstances, there has been no actual immediate emergency.
In order to provide effective means to avoid disruption of these services, Amendment No. 5 states:Collective action, whether primary or secondary, taken at the instigation of a trade union which—(a) disrupts fire brigade services, or(b) inhibits due performance of an order of the Secretary of State under subsection (1),or Amendment No. 6—to which one returns again—shall be unlawful".414 That is requisite for the judicial enforcement of the regime of the orders of the Secretary of State.
Amendment No. 7 states:(1C) There shall be established a mandatory arbitral tribunal … independent of government, for the resolution of disputes concerning the conditions of service of members of the fire brigades.(1D) No dispute shall be referred to the tribunal unless there has been a failure of collective bargaining, and such failure has been certified either by—Indeed, the origins of subsection (1D) in Amendment No. 7 really stem from an intervention made by the noble Baroness, Lady Turner of Camden, who has some experience in these matters, which I do not have. Subsection (1E) states:
- (a) the parties to the dispute, or
- (b) ACAS".Any award of the tribunal shall be binding on the parties and on government".That is the essential essence of the proposals as a package, which are made in support of the proposal to set up two distinct regimes. In other words, the proposal is to strengthen the powers of government—totally plenipotentiary powers—in an emergency without qualification, but, with the sole exception of Amendment No. 6, if there is not an emergency, to put it simply, to retain the excellent bargaining structure. That is the simple idea. I am afraid that it was not quite so easy to draft simply.
I shall conclude. One must accept that Clause 1, as drafted, does not truly represent the Government's intention and may not stand unamended. Intentions of government as to implementation must be set out in the Bill. Of course, we all accept what the noble Lord, Lord Rooker, says in good faith. There is no question of that. I am not getting at that. We have here a duty of due scrutiny. We must take a Bill as we find it. I do not think that we need to bother very much about what any other Secretary of State would do. To be perfectly frank, I think that whatever they did they would do it very well, honestly and fairly. We have got a job to do. The Bill must be drafted to represent the actual and true intention of government. The main reason why I am insisting on this, is not for the purity of draftsmanship, it is because of the putative resort to the imposition of conditions of service where there is no immediate emergency. It is against my whole erstwhile professional background of appearing sometimes for trades unions, sometimes against them. It just will not do as it stands. Although it may not be used, the threat is a form of a Sword of Damocles hanging over the whole process of collective bargaining. This is why I assert that the Bill must be amended.
I just want to say one more thing. The broad sense of the debate in the other place on the 20th March which heralded the introduction of this Bill, would appear to favour further consideration of amendments, of arguments deployed in your Lordships' House. If one reads it carefully, inevitably there was unease about this. This is no exercise in confrontation with the Government or with the other place. One has to accept that the Bill has not yet commended itself to the 415 Opposition parties in either House or to old Labour in either House. Let us not forget old Labour; it is still a very honourable and important force. They are not all determined to wreck the economy or to do this or that. They are perfectly ordinary people and their views have not been sufficiently attended to for quite some time.
No informed representative opinion has been as yet discussed. We have had this rather odd Grand Committee sparsely attended and largely occupied with very esoteric academic discussions most of which I did not understand and which went on for three days. I do not wish to take the opinion of this House before having read what is said in this debate and entertained consultation so that at least when we come back, a representative opinion may be achieved. I apologise for taking rather a long time. I beg to move.
§ Lord Rooker
My Lords, I shall seek to do justice to the noble Lord's group of amendments. I am not seeking to jump the gun, but I may touch on Amendment No. 5, to which he referred and which is linked with Amendment No. 8, although that amendment is the property of the Conservative Front Bench.
This group is largely concerned with placing conditions on the Secretary of State's power to make orders under the Bill. Noble Lords will be aware that the purpose of the powers is that in the event of a further dispute the Secretary of State can take action to remove the cause of the argument. If it becomes necessary for the Secretary of State to use the powers—and we very much hope that it will not—he must he able to intervene decisively and without undue delay so that the argument does not drag on, as it did in the past 12 months. Placing preconditions on the powers, however well intentioned, would make that more difficult and could even call into question the Secretary of State's ability to exercise the powers, as I shall explain.
Amendments Nos. 2 and 4 are in part concerned with restricting the use of Clause 1(1) to states of emergency. They would allow the Secretary of State to use his powers under that subsection in a state of emergency, but the recent fire service pay dispute was not deemed a state of emergency, even when the country was at war. Local disputes that may stem from the dispute are certainly unlikely to constitute a state of emergency.
The Emergency Powers Acts 1920 and 1964 allow the Queen to issue a proclamation of a state of emergency if it appears to Her Majesty that there have occurred, or are about to occur, events of such a nature,as to be calculated, by interfering with the supply and distribution of food, water, fuel, or light, or with the means of locomotion, to deprive the community, or any substantial portion of the community, of the essentials of life".
§ Lord Wedderburn of Charlton
My Lords, will my noble friend read the rest of the Act, which is only a very short paragraph?
§ Lord Rooker
My Lords, no. I am sticking to the notes that I have.
416 We do not want a state of emergency to exist at all. If it were to do so, for example, as the result of a chemical, biological, radiological or nuclear attack, I would hope and expect firefighters to act responsibly regardless of whether they were engaged in an industrial dispute and to protect the public. I know from his remarks on Second Reading that the noble Lord, Lord Campbell of Alloway, shares that view. Noble Lords will recall that there were numerous occasions during the dispute when firefighters left their picket lines to attend emergency calls when lives were in danger. We would expect nothing less, and we pay tribute to the work done in that respect.
The noble Lord, Lord Campbell of Alloway, has previously indicated that he believes that powers such as those in Clause 1(1) should be exercised only in a state of emergency. During the Second Reading debate, he recalled the emergency legislation passed during the Second World War and indicated that the Bill could have been justified by the circumstances pertaining at the time of its introduction in the other place—that is, the conflict in the Gulf. Circumstances have clearly changed since the Bill's introduction in the other place, although our Armed Forces are of course still at risk.
As I said in Grand Committee, it would not he right for us to have to wait for a state of emergency before the powers in the Bill could be exercised. It would not be acceptable to the House or to those outside this place if the dispute were to flare up again, further strikes were threatened, and all that the Government could say was, "We can't sort this out because there isn't a war on". As I have explained repeatedly, this Bill is to tackle a specific circumstance, which is not a state of emergency.
With respect to collective bargaining, in relation to Amendments Nos. 4 and 6, the other conditions under which the Secretary of State may make an order under Clause 1(1)(a) are when collective bargaining has broken down and mandatory arbitration has either not been applied for or the results of the tribunal have been ignored or rejected.
The difficulty with the proposition that collective bargaining would have to have failed before the Secretary of State could exercise his powers is that it is a matter of judgment whether collective bargaining has failed. There is not necessarily one single point in a dispute that marks with absolute certainty the point at which collective bargaining can be considered to have failed. For example, it could be argued strongly that collective bargaining did not fail during the recent dispute, given that the two parties eventually reached an agreement. Most reasonable people would accept that there were a number of occasions during the long dispute when the prospect of a negotiated settlement seemed extremely remote and where the sort of decisive intervention that the Bill will allow would have been appropriate.
Amendments Nos. 6 and 4, if accepted, would theoretically provide an opportunity for the employers or the union to challenge the Secretary of State's exercise of power on the grounds that in their view 417 collective bargaining had not failed. At the very least that could delay the Secretary of State's intervention with the result that a potentially damaging industrial dispute could drag on or that firefighters would not get a pay rise.
As regards the other conditions suggested in Amendments Nos. 6 and 4, namely, the issue of the award of a mandatory arbitral tribunal, that should have been ignored or rejected before the Secretary of State can use his powers. Amendment No. 6 refers to Amendment No. 7, which would provide for the establishment of an independent mandatory arbitral tribunal for the resolution of disputes concerning the conditions of service of members of the fire brigade. Disputes would be referred to the tribunal only if collective bargaining had failed. The failure of collective bargaining would be determined by the parties or ACAS. The award of the tribunal would be, as the noble Lord said, binding on all parties and the Government.
The issue of arbitration was raised by a number of noble Lords during Second Reading debate and in Grand Committee. We indicated then that the Government had some difficulty with it. That is still the case. It would go against the whole purpose of the Bill. If the two parties to negotiation cannot agree, the democratically elected Secretary of State with responsibility for the provision of an effective fire service and for the public funding of that service, should step in and make a settlement. I agree that that would require some hard decisions and those could not and should not be handed over to a third party.
The issues which caused the most difficulty in the fire dispute are those such as how the fire service should move from a prescribed national fire cover standard to a locally risk-based approach to fire cover; and what are the implications for staff, especially shift patterns? These are not necessarily issues for arbitration. Ultimately, one cannot arbitrate about policy questions such as the right basis for fire cover. One can arbitrate about some of the implications, but it is hard to see how even the best independent arbitrator would be better placed to make informed judgments than those directly involved in managing the fire service or those in government who have the policy responsibility for it. We are prepared to make the hard decisions ourselves if we have to, not just hand them over to someone else.
Amendment No. 7 also states that any award of a tribunal would be binding on the Government. That raises the question of whether the Secretary of State would still be able to discharge his powers under Clause 1(1)(a) to fix or modify conditions if this interfered with the decision of a tribunal and the award of the tribunal was binding on the government. However, as the Government are not a party in the resolution of disputes concerning the conditions of service of members of the fire brigade, it would be impossible for the award of a tribunal to be binding on them. The drafting in this respect is flawed.
418 As regards Amendment No. 4, it also requires the Secretary of State, save in states of emergency, to consult before directing fire authorities in the disposal and use of their facilities and property under Clause 1(1)(b). If it became necessary for the Secretary of State to use the powers, he must be able to intervene decisively and without undue delay so that lives are not put at risk. He may need to do that in circumstances which do not amount to a state of emergency as defined in other legislation mentioned earlier, but where the public are still at risk. However well-intentioned, and I accept the good intentions on this point, placing pre-conditions on the powers would make that much more difficult.
Amendments Nos. 3 and 13 would effectively remove the provisions in subsection (3) which require the Secretary of State to submit any proposals on the conditions of service for fire brigade members to any negotiating body that appears to exist. I assume that the noble Lord wishes us to read this amendment in conjunction with Amendments Nos. 2 or 4, which makes it impossible for the Secretary of State to use these powers in subsection (1) save in a state of emergency.
I explained earlier why we cannot accept the amendment, which restricts order-making powers to a state of emergency, and, as Amendments Nos. 3 and 13 would not be desirable without this pre-condition, I regret that I cannot accept them either.
I have a final point to make about Amendment No. 5, to which the noble Lord referred. It takes a different, more direct approach. It seeks to make collective action taken at the instigation of a trade union unlawful, first, if it disrupts fire brigade services, and secondly, if it inhibits performance of an order made under the Bill.
I can only repeat what I have said on numerous occasions. We do not intend to change the general law on industrial action in relation to the fire service. Whatever the cause of any collective action, if the proper steps are taken the existing legislation will offer some protection for those taking the action. That will remain. The Government do not intend to use the Bill, which we have consistently said is limited in its purpose, to make changes to industrial relations law. With that in mind, I hope that the noble Lord will reflect on the matter and withdraw his amendment.
§ Lord Wedderburn of Charlton
My Lords, since the matter has been mentioned in your Lordships' House both on my part and elsewhere, Section 2 of the Emergency Powers Act 1964 states—most commentary regards this as perhaps the most important part of the Act—The Defence (Armed Forces) Regulations 1939 in the form set out in Part C of Schedule 2 to the Emergency Laws (Repeal) Act 1959 (which regulations enable the temporary employment in agricultural work or in other work, being urgent work of national importance, of members of the armed forces of the Crown to be authorized) shall become permanent".419 That should be placed on the record when the Emergency Powers Act 1964 is being discussed. The powers under the defence regulations that were then made permanent are extremely extensive.
§ Lord Campbell of Alloway
My Lords, I am grateful to the noble Lord, Lord Rooker, for the care with which he dealt with the amendments. Assuredly I would wish to reflect on much that he said. There is one matter where it would have been right on an old brief. but the question of whether collective bargaining ends has been dealt with as a result of a discussion some time ago.
Amendment No. 7 states:(1D) No dispute shall be referred to the tribunal unless there has been a failure of collective bargaining, and such failure has been certified".That is a small point, but the noble Lord, Lord Rooker, took it. If it is not certified by the parties, as I am told is the usual practice in collective bargaining, it could be certified by ACAS. I am taking that small point to correct it.
Of course I wish to consider the substance of the Minister's remarks. I will withdraw the amendment on that basis so that I may return to the matter if so advised at Third Reading. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 3 to 7 not moved.]
§ Baroness Hanham
moved Amendment No. 8:Page 1, line 6, at end insert—( ) The provision that may be made by virtue of subsection (1)(a) includes the power to make provision about conditions of service relating to—
- (a) membership of trade unions by fire brigade members: and
- (b) disciplinary offences by fire brigades members."
The noble Baroness said: My Lords, I hope that I can be reasonably brisk. The Minister will know from our discussion in Grand Committee that we have a number of considerable concerns about the Bill, not least of which is how it would be implemented if it had to be implemented in the face of some considerable intransigence from the Fire Brigades Union. If the Bill has to be used it will not be used with co-operation but as a result of lack of co-operation.
At the end of the day it seems that there is nothing to stop the unions from striking yet again. Nothing in the Bill gives the Government any comfort at all about how to react if the worst comes to the worst and no one pays any attention to what the Bill says.
It has long been argued that the fire service ought to be in the same position as the police and the armed services. There ought to be no-strike clauses in relevant procedures or legislation to reinforce the Government's hand if they have to use this legislation. Perhaps the Bill is currently not the right place for such provision. I know that the matter has been considered and may be dealt with in the White Paper, but that will not help if this legislation has to be used. The two provisions in Amendment No. 8 specify that there should be no-strike 420 provisions in this legislation and that disciplinary offences concerning those who breach not only these but other regulations should be included.
Amendment No. 5, moved by my noble friend Lord Campbell of Alloway, was never part of my proposals but it neatly complements them. My amendment is effectively more extreme than his, but it foresees the possibility of a more disastrous situation than the Government may have envisaged in the Bill. I beg to move.
§ Lord McCarthy
My Lords, before the, noble Baroness sits down—and I hope that she will not follow the earlier innovation of saying, "I have sat down already"—does she agree that if the Government introduced an order and an employer were to say, "I can't carry out that order because the workers are on strike; they are not co-operating", and if it were taken to the point where the employer sacked those workers, and if they went to an industrial tribunal and said, "But this is unfair dismissal", that tribunal would be bound to say that they were not protected if they were sacked on the grounds that they were frustrating the performance of a statutory duty? That is the first way—there are other ways—in which it is not true that the measure does not affect the right to strike. They could be sacked and a tribunal could say that it was fair to do so. Breach of contract will apply and that will he the end of that.
§ Baroness Hanham
My Lords, I cannot answer any of that. What I am trying to build into the Bill is a means of dealing with the reality of the situation. It is currently a completely toothless tiger.
§ Lord Wedderburn of Charlton
My Lords, I put this not as a question but as two clear points. First, we now have repeated on Report what was said in Grand Committee—that the Opposition's official policy is to militarise the fire service, place it in the same position as the Armed Forces and abolish its right to strike.That is now clear and I am grateful that it has been made clear because it is a distinct difference from the Government, whose intention is not to affect the right to strike—although, as we shall later argue, unhappily, their Bill does not reflect that intention. However, the Opposition are clear: they want to conscript the fire brigade. That is the first point.
The second point is very serious for the noble Baroness. She made very similar points in Grand Committee—where we had a jolly little debate on one of her amendments. I asked her then more or less the following: "Does that mean that you denounce the ILO conventions which plainly state that, apart from the police and the Armed Forces, it is an offence against international law to abolish the right to strike of other groups of workers?" It is true that there is extensive ILO jurisprudence on the matter—jurisprudence in the sense of the Committee on Freedom of Association.
I asked that question some time ago, and the noble Baroness has had time to think about it. Yet she does not mention the ILO. Presumably, however, impliedly, she 421 now confirms that it is Opposition policy to denounce that right in international law under the ILO. And it is not just under the ILO; it is also the Council of Europe, the European charter and a number of United Nations documents as well.
The noble Baroness has also had the chance to do some reading. It just so happens—and I want to refer to this work later, not in extensor but in general terms—that she has had the opportunity to read a piece of scholarship that sets this all out in enormous detail. I refer to the book, published this July by Oxford University Press, which seems to take the Minister's fancy, by Dr Tonia Novitz, called The International and European Protection of the Right to Strike. I do not suggest that the noble Baroness should have read it. One of the marks of these debates is that people do not read things. It is not her fault and she is not alone, but she might have considered the point. She wants to militarise the fire service and denounce the ILO. That is a clear distinction from government policy and, whatever I say about this Bill, I recognise that distinction. I think it deplorable that the Opposition of this country, who believe—well, they may not believe it, but who think—that they may one day form a government, come out with that stuff. It is disgraceful.
§ 11.30 p.m.
§ Lord Campbell of Alloway
My Lords, the noble Lord refers to the concept of my party, or the party to which I adhere, of conscripting the fire brigades. I know of no such policy. I have always made it plain that the individual right to withhold or withdraw labour would always be maintained and preserved. I made it plain, although it may not have suited the noble Lord to understand, that I was referring to collective action taken within this union because of the danger to the public and the public interest. It had nothing to do with conscription and I was totally prepared to accept the imposition of service in any time of emergency because it would be necessary—but not otherwise. It is not fair of the noble Lord, Lord Wedderburn, to have read out all sorts of passages from the Oxford book on the matter to my noble friend Lady Hanham. Neither she—I suspect but do not know—nor I know of any policy of our party as was suggested by the noble Lord.
§ Lord Rooker
My Lords, I shall concentrate on Amendment No. 8. I dealt with Amendment No. 5 in the context of the noble Lord's views, but as the noble Baroness said, Amendment No. 8 is the key amendment. It provides that an order under Clause 1(1)(a) could include provision about membership of trades unions and about disciplinary offences. Since firefighters currently enjoy an unfettered right to join a trade union, this amendment could only constrain that right. I understand that the intention behind this amendment is to put members of fire brigades on the same or similar footing as police officers.
Police officers are prevented joining a trade union by virtue of Section 64 of the Police Act 1996. Police officers are also subject to the Police (Conduct) 422 Regulations 1999, which include a code of conduct covering various matters such as attendance at work. Any breach of the code—for example, taking strike action—could ultimately lead to dismissal. The central issue here is the so-called right to strike. I remind noble Lords that there is no statutory right to strike in the UK. However, there is no practical way to prevent someone withdrawing their labour or to force them to work. So a ban on strike action would be pointless. The so-called right to strike is given by the Trade Union and Labour Relations (Consolidation) Act 1992. This provides statutory immunity for striking workers and their trade unions so that they are protected from legal action for breach of contract provided the industrial action is in response to a trade dispute and has been subject to the proper balloting and notification procedures. In addition, the ability to strike is seen as an important part of the freedom to associate under Article 11 of the European Convention on Human Rights.
I accept that it is a matter of judgment whether firefighters, like the police, perform a role which makes it necessary to interfere with the basic right of any working person to withdraw their labour. Our judgment remains that they do not. We have made our views on this point absolutely clear in our White Paper, Our Fire and Rescue Service, which stated in paragraph 7.25 that,employees' ability to take lawful strike action should only be withdrawn in exceptional circumstances. While some may well argue that the experience of the recent fire strikes provide precisely such circumstances, the Government has no plans at present to remove from employees in the fire and rescue service existing freedoms under the law to take industrial action. But it will keep the position under close review".Under any circumstance, I do not think the kind of powers that would be conferred by Amendment No. 8 would be an appropriate way to deal with these matters. I could certainly not support the idea of the Secretary of State legislating in an order about such fundamental things as trade union membership.
So far as the second limb of this amendment is concerned, the Secretary of State already has the power to make regulations about discipline in the Fire Services Act 1947 (Section 17). The recent White Paper explained that we intend to abolish the current military style regulations and replace them with a new framework based on ACAS best practice guidance. We do not need another power here. Therefore, Amendment No. 8 is unnecessary and I hope that, on reflection, the noble Baroness will not press it.
§ Lord Wedderburn of Charlton
My Lords, on a point of information I ask about a straight question of fact. Are the Government planning to abolish those regulations and the promotion regulations before the end of the year?
§ Lord Rooker
My Lords, we shall legislate following the White Paper. We have produced a White Paper which precedes legislation. There will be a Bill but I do not know when it will come before the House.
§ Baroness Hanham
My Lords, I thank the Minister for his reply and the noble Lord, Lord Wedderburn, 423 and my noble friend Lord Campbell of Alloway for their interventions. Irrespective of what happens with this amendment, the question still remains of how the Government will implement their legislation if they have to. The right to strike remains and therefore a strike can take place whether or not the Government decide to implement the Bill. A strike can take place if the Government decide to implement the Bill. Therefore, the Bill remains unimplementable in the face of intransigence. That is one of the big flaws in the legislation. If people do not agree with what the Government are saying and do not want to go along with that, it is almost impossible for the Government to have their way.
§ However, I hear what the Minister says—
§ Lord Rooker
My Lords, the Bill is a means for the fire-fighters to get the money in the event of a dispute. In certain circumstances we want to pay them the money. The argument that the Bill is unimplementable is abject nonsense. It will give the Secretary of State the power to get the payments to the fire-fighters.
§ Baroness Hanham
My Lords, I did not intend to end on a note of disagreement. However, under the Bill the Secretary of State could put forward any scheme at all. The Bill states that he can impose pay and conditions of service, but it does not say what they are unless there are to he further Explanatory Notes attached to the Bill stating that the Secretary of State would implement only the pay as agreed at the present time. However, that is not stated in the Bill. As I read the Bill, the Secretary of State could decide not to accept a pay deal and to impose a completely different pay deal and try to implement other conditions of service. That might not he at all acceptable to the Fire Brigades Union, but that is how I read the Bill.
§ Lord Rooker
My Lords, the whole point is that if there was a deal, there would not be a dispute. We laboured this point in Grand Committee. I said that the Secretary of State would not be using the power to reduce firefighters' pay. We discussed this. It would be a means of his being able to get money to the firefighters which the dispute was stopping.
§ Baroness Hanham
My Lords, on the basis of what the Minister has said, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Baroness Hanham
moved Amendment No. 9:Page 1, line 6, at end insert—(1A) Before making an order under subsection (1), the Secretary of State shall conduct a postal ballot of all fire brigade members on his proposals.(1B) In relation to subsection (1A) above, it shall be the duty of any fire authority to supply the Secretary of State with any information he requires to enable a ballot to be conducted.424 The noble Baroness said: My Lords, I hope that I can introduce this amendment even more briefly. Again, it goes to the heart of whether, and how, the provision would be implemented. It is clear that the Bill will he implemented only at the end stage, when everyone is exasperated and has lost the plot.
At the end of the day, it would be worth the Secretary of State testing the views of the Fire Brigades Union by a postal ballot before implementing the deal. That is what the amendment suggests. I beg to move.
§ Lord Campbell of Alloway
My Lords, I am worried about this amendment. I have let my noble friend know my views. Irrespective of whether my amendments hold or fail, this amendment has to be qualified. As it stands, it would delay plenipotentiary powers of immediate effect in the event of a terrorist attack. So it would require a drafting qualification to make certain that these provisions should not apply in the event of an emergency.
Then, we are getting again towards the two regimes, which at the moment the Government are not willing to accept. But if the Government are not willing to accept that, I suggest that they have to take on hoard my concern about the amendment.
§ Lord Evans of Temple Guiting
My Lords, I am most grateful to the noble Lord, Lord Campbell of Alloway, for his intervention. That is precisely the Government's argument: that the postal ballot would take time without getting anywhere.
The powers in the Bill, as we have said on many occasions, are designed to deal speedily with a situation in which the normal process of negotiation has broken down. We also made the point in Grand Committee that the Office of the Deputy Prime Minister does not have available the up-to-date information to carry out such a detailed ballot. Although the latter part of the amendment requires fire authorities to supply the Secretary of State with relevant information to carry out a postal ballot, the amendment gives no time limit within which the fire authority should comply. Should the tire authority wish, it could delay the process to such an extent as to render it useless.
Even if the Secretary of State did carry out a postal ballot on an order modifying or fixing conditions of service, it is not clear what we would do with the results of the ballot. The amendment does not say what should be done with the results, and to that extent it has little meaning.
If the purpose of Amendment No. 9 is to seek consultation from fire brigade members, that is already provided for through consultation with the negotiating body, which will include representatives of fire brigade members, under Clause 1(3).
As I have explained previously and as we have said on many occasions, the powers in the Bill are not for generalities but to deal with a specific set of circumstances surrounding the strikes earlier this year. Against that background, I hope that the noble Baroness will feel able to withdraw her amendment.
§ 11.45 p.m.
§ Baroness Hanham
My Lords, if one gets to the stage of needing to use this Bill, it is possible that negotiating bodies will no longer be the people with whom one is considering doing any deals. That will have all broken down. It might very well be that what the Secretary of State wants to introduce could be perfectly acceptable to members of the Fire Brigades Union. There has always been a question about how many people support the action. The only way that the Secretary of State will ever be able to find that out is in a non-emergency situation. I accept that it is technically a fault on that basis, if we are now accepting that there are two sides to the Bill.
The fact of the matter is that one might get very different results from postal ballots than from negotiators. It seems to me perfectly proper for the Secretary of State to have that ability if he wishes. One could easily limit the period in which the information had to be provided about the personnel. If that is a technical hitch, it could easily be amended. Having said that, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Lord McCarthy moved
Amendment No. 10:Page 1, line 6, at end insert—(1A) The Secretary of State shall publish a code of guidance explaining the conditions under which or situations in which he is likely to wish to make use of his powers to make orders under this Act, and such code of guidance shall create no legal rights or duties but shall be taken into account by the courts in relation to any order.The noble Lord said: My Lords, we now change the emphasis. We have been trying to get the Government to say a little about the circumstances when they would bring the Bill into action and when they would say that it was an emergency. We have been concentrating on emergencies. Now, we shall try a slightly different approach in the hope that we might get somewhere. The amendment talks not of limitations but of a code of guidance, explaining the conditions in which the Secretary of State is likely to make use of his powers to make orders under this Act and that,such a code of guidance shall create no legal rights"—so it is different in that respect—or duties but shall be taken into account by the courts".That is an attempt to transfer into the field of the fire service the concept of guidance, advice or statutory codes of practice.
There are many statutory codes of practice which specify all kinds of things. For example, there is the code of practice that deals with how to conduct legal ballots or what to do to comply with the health and safety law or to avoid discrimination. Many codes of practice tell the parties, the individuals, the employers and the workers concerned what their legal rights and liabilities are and a very great deal about how the Act is designed to work.
Strangely enough, so far as I know—and I should be very pleased for the Government to get up and say that we have this wrong—the Government do not propose to provide guidance to the parties on this quite 426 unusual, if not unique, experiment in legislation. Therefore, we are suggesting that they might like to do that. For example, they might like to say something. They might reprint the words of the noble Lord, Lord Rooker, about what an emergency situation is. I was very surprised to learn that he did not think that the last fireman's strike was an emergency. I do not know what an emergency would be. The way the Government criticised the union—and of course they are perfectly entitled to do that—one would have thought that it was an emergency situation. After all, there was a sense in which the country was at war. The problem, the Government said at the time, was that it was time that the soldiers who had been sent to Iraq came back or that it was time they were circulated around. We could not go on like that. That was a very large part of the Secretary of State's argument.
Therefore, if we could have a return to those themes and be told the circumstances in which the Government would think it was an emergency, that would be extremely useful for the parties. It would certainly be of use to the parties if there was something—not on the face of the Bill—about the circumstances in which the Government would use these orders if there was no sign of industrial action. I had thought, before the Minister made his speech in Committee, that we could more or less assure ourselves that government would not use this Bill, which is to deal with an emergency situation, if there had been no sign of a strike. In most of the ways in which he developed the argument, there is a strike, the strike has been going on for quite some time. They may even have got to the point where they have made a settlement, but that is not enough. We would like to know why it should be that, when there is no industrial action in prospect, this legislation should be introduced. Would it be introduced only in the sense that the Minister might propose something, but would not necessarily bring out an order until he could size up the situation?
There is, of course, the question that has been raised—and again I think it would be very useful for the parties involved to be told—as to how far and in what circumstances the Secretary of State might bring out his orders, even if there was an agreement. I know that the Minister referred in Committee to circumstances where the parties had got together and there was some settlement that was a carve-up, in which the two sides were agreeing things and expecting the Government to pay. But surely something more could be said about the kinds of ways in which an agreement would produce not peace, quiet, placidity and acceptance, but an order? As I said in Committee, there can be occasions, very often there are, when the parties to a complex negotiation agree two-thirds of it, but they cannot get the last bit done, they cannot get the words done. Those words are not necessarily critical, they may be thought to be more important by one side or the other, but what they really want is time, and they might take that dispute, that issue, out of the negotiations. They might say, "We will come back to that in six months. It is something that we do not want to discuss any 427 further. We will sign what we have got." Is that the kind of situation—surely not—in which the Secretary of State could suddenly say, "Well because you have not agreed everything, I will introduce my order."? I would not have thought so, but maybe it is, and if it is, then I think it is possible that we ought to have an understanding.
I go back to the point that I made in answer to the previous amendment. The Government go on about the fact that this is not changing the right to strike. You can argue about whether it is changing the right to strike and the extent to which it is changing the right to strike in relation to the trade union. We are talking about whether the trade union is inducing a breach of contract. But as I say, think of the worker. How can the Minister say this, if he is paying attention?
Suppose the employer says, "I will sack these people. This is a statutory duty. I can sack people if it is a statutory duty because it is not a breach of contract. It is unlawful. They are preventing me from carrying out the statutory duty." He sacks them. They then have to crawl all the way to an industrial tribunal. It takes a long time with conciliation and mediation. They are on the stones. You cannot say these people have not had their right to strike abridged. They are on the stones, they have lost their jobs. Eventually they go to a tribunal and the tribunal says, "That is perfectly true, we have authority for this, after all Lord Denning said that there is no immunity for an authority to break its statutory duty. So if that is the case then there is no immunity for the workers who forced it to fail in its statutory duty." So the union loses. So the union goes to the EOC and the union goes to the Court of Appeal and it keeps going and all this time the workers are sacked and if more workers come out in support of these workers they are sacked as well. The strike has been broken by dismissals, by sequential, growing dismissals. How can you say that that does not abridge the right to strike? That problem does not arise for any other group of workers in England. Of course you cannot say that.
§ Lord McCarthy
My Lords, yes, but are we saying that they are in the same category as the Armed Forces and the police? If that is the case, then say tonight that you are putting them in the same group as the Armed Forces and the police, but do not dare to tell me that you have not abridged their right to strike. Of course you have.
One could go on finding things on which something should be said, and about which the Government ought to come clean. In particular, the Government should come clean about how the Bill seriously undermines workers' right to take industrial action. I do not think that they are prepared to say anything, or to put anything in the Bill, but surely they ought to say 428 that they will produce some explanation—call it a code of guidance or something else—that will tell those poor devils what is in train for them. I beg to move.
§ Baroness Turner of Camden
My Lords, I support my noble friend's amendment. As I am sure the Minister is well aware, it is usual to have codes of practice issued in connection with legislation. That is all that the amendment proposes. As he is well aware, the legislation is not terribly popular. I have received letters from the FBU opposing it. If a code of practice is issued indicating how the Government see their powers under the Bill and how they intend to proceed, it might render the whole exercise slightly more acceptable, which needs to happen.
§ Lord Wedderburn of Charlton
My Lords, I support the amendment. However, the problem that my noble friend put involving industrial action will be very simply remedied, because the Government can easily accept Amendments Nos. 11 and 25—I hope that the Minister will—and put the matter right. It is a very simple point, but we shall come to it then.
I wish to address the golden thread of merit in the amendment that appears in the last few words:such code of guidance shall create no legal rights or duties but shall be taken into account by the courts in relation to any order".I hope that the Government and their Chief Whip will understand the importance of those words. They are the normal formula that has appeared in many statutes. I shall not go over the same ground as my noble friend; there are all sorts of merits in a code of guidance. He outlined perfectly well the role that they can usefully play in negotiation. To be "taken into account by the courts" is the normal formula that means the court can take judicial notice of the code and solve any evidential problem, just as it does with the ACAS code.
The thread of merit goes further in view of what the Minister has said earlier about challenge in the courts. He said that Amendment No. I could be challenged in the courts. When I asked him how that could he done, he said that he did not know. This is a very important constitutional moment. If I were a critical chap, and if the Minister were paying attention to the point, I might say that when a Minister of the Crown tells the House that a form of words could be challenged in the courts and is then asked how that would be, to which he replies, "I do not know"—of course I have sympathy with him as it was not in his brief—that would usually be the occasion for a Statement at a later stage.
The great merit of this amendment is that it cannot possibly meet that objection. It has been well recognised that such a code of guidance is not creating rights or duties, which means that it is not legally binding on the Minister, but that the courts may take judicial notice of it. Therefore, there is no question of a challenge in the courts for the code of guidance and it would, as has already been said by both my noble friends, also have the great merit of being able to resolve situations that might otherwise lead to a more provocative dispute.
429 I therefore hope that the Minister will take very seriously the idea that, once again, instead of merely telling us the Government's intentions, all of which we totally believe, they will put something about those intentions in the Bill. What the Government say is not law, but what the Bill or Act states is. We shall return to that in other amendments.
I very much hope that on this occasion my noble friend the Minister will give a favourable view towards doing something of the kind suggested by the amendment.
§ Lord Evans of Temple Guiting
My Lords, I am afraid that I am going to disappoint my noble friend Lord Wedderburn of Charlton, because we believe that the amendment is unnecessary.
The Secretary of State is under a general duty to act reasonably and proportionately and the Secretary of State has made it clear—as have we, on many occasions—that the powers the Bill would confer are designed for a very specific set of circumstances. The Secretary of State is not going to decide suddenly to use the powers for an alternative purpose. Even if he did, the Bill places a duty on the Secretary of State to consult with either the negotiating body for orders under Clause 1(1)(a) or with persons affected by an order under Clause 1(1)(b) before using his powers. So the Secretary of State can respond to new, developing or unforeseen circumstances but no one can be taken entirely by surprise.
As the code of guidance suggested in Amendment No. 10 would create no legal right or duty, if the Secretary of State decided he did want to exercise his powers outside the code of guidance, he could simply amend the code. So the amendment would introduce a very blunt and ineffectual tool in curtailing the use of his powers—which I assume is what is intended—compared to the existing duty to consult.
The amendment states that the code could be taken into account by courts in relation to any order made by the Secretary of State, but as noble Lords know, any order made by the Secretary of State under this Bill would be open to judicial review anyway, whether a 430 code of guidance existed or not. It is right that judicial review remains the ultimate safeguard against an unreasonable use of this power.
We suggest that this amendment adds nothing helpful to this Bill and request that the noble Lord withdraw it.
§ Lord McCarthy
My Lords, that is not entirely a surprise, but it is remarkable. The Minister says that the amendment is unnecessary because the Secretary of State is a reasonable man. Are we not all reasonable men? However, he cannot tell us the criteria that he will use to apply his reasonability. He is just a reasonable man. If he were unreasonable, he could be taken to court. However, people want to know what is going to happen before it happens. They do not want suddenly to be told that this or that is happening.
The Minister says that people will not be taken by surprise entirely, and that they will have some idea, because the Bill has a specific purpose. We have often been told that in the course of this debate, but we are not told whether that specific purpose comes in when there is a strike, when there is no strike or when any of the many and variable situations that will take people entirely by surprise occur.
So I do not see how, when the Bill is an Act, the Government, whether or not they accept the amendment, will not have to produce something. Every Bill that I have ever got involved with has had something from some ministry—itis usually highly glossy and expensive—telling us what the Bill will do and giving some guidance. This will be a unique—and reasonable, of course—Bill. Not only will there be no code of practice, for the first time; there will be nothing but silence, while we wait for the reaction of the reasonable man.
I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ Moved accordingly, and, on Question, Motion agreed to.
§ House adjourned at six minutes past midnight.