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Lord McCarthy: I want to complete the few words I was saying. I am not saying that you cannot have limits on the scope of industrial action. I am saying that it cannot be done in the form in which the noble Lord advances it. I do not see why one wants to do it in particular, or because we have had a dispute in the Fire Service which has now been settled.
I do not see why one wants to attempt to introduce some alternative to the fiendish proposals which the Government put in the Bill, providing that the only way you can obtain conciliation, mediation and arbitration—you end with arbitration; you do not start with it—is by inserting into the Bill a no-strike clause; even the weak enough no-strike clause that the noble Lord suggests.
If you made a list of the workers in this country on grounds of the problems they could cause if they took industrial action, you would not start with the Fire Service. An equivalent argument could be made in relation to many other groups of workers. Once you say that you have conciliation, mediation and arbitration only if you rearrange certain circumstances and you ban industrial action, that is a precedent.
I know that the noble Lord is not for this, but I warn him that we are facing precedents. The misconstruction of the 1947 Act was a precedent. This Bill is a precedent. If you read the White Paper on the future of the Fire Service, the Government are clearly planning another series of precedents. One, two, three—it goes on. We do not want to do anything—and I am sure that the noble Lord does not—to strengthen these precedents that the Government have in mind. Therefore, I cannot support his amendment.
Lord Rooker: I shall do my best to answer the noble Lord, Lord Campbell. I congratulate him because his amendment encapsulates four or five key aspects which I can address. I shall answer them in some detail, but I do not intend to address them again. For the avoidance of doubt, I shall not make the same speech over and over again. If other amendments raise similar issues, I shall simply refer back to the points I have made.
There are some aspects to Amendment No. 1 which raise four key issues which would be worth putting on the record. The amendment requires one or more of the conditions which the noble Lord has set out to be met before the Secretary of State can exercise his power to fix or modify the conditions of service. Members of the Committee will be aware that the purpose of the power is that in the event of a further dispute, the Secretary of State can take action to remove the cause of the argument.
If it becomes necessary for him to use the powers—and we hope it will not be; it is an issue of last resort—he must be able to intervene decisively and without undue delay so that the argument does not drag on in the way it has done during the past 12 months. If there were any professionalism about, arguments would not drag on for a long period of time and we could not afford undue delay. Placing the preconditions, however well-intentioned—and I accept that they are—on the powers would make a speedy decision-making process more difficult.
Let us take collective bargaining. The first part of Amendment No. 1 would require it to have failed before the Secretary of State could exercise his powers. There is a difficulty there. The noble Lord is a lawyer, but his proposition is that it will be a matter of judgment as to whether the collective bargaining has failed. Some people could argue that collective bargaining did not fail in the recent dispute. They live in a time warp and think that constant dispute, constant chatting, constant negotiations over a 12 month period did not ultimately fail.
Therefore, it is arguable how one would define the point when collective bargaining has failed. There is no precision in that.
Lord Campbell of Alloway: The noble Lord is quite right: the drafting is defective. In practice, one of the parties to the collective bargaining will say that it has failed and apply to the tribunal, which will then decide whether it has failed. If it obviously has failed, the tribunal will get on with it; if not, they will be remitted. That should have been included in the drafting, but I tried to put it simply. The noble Lord is quite right to make the point.
Lord Rooker: With due respect, we are legislating here; we are making an Act of Parliament. I can address only the issues on the Order Paper. The Government have proposed a Bill that the other House has sent to this place. There are amendments, so I shall have to look at the words. The thrust behind the probing amendments will be slightly different—it will go wide of the mark. The noble Lord's amendment is fairly precise. I shall do my best to answer the four points.
Most reasonable people might accept that there were a number of occasions during the recent dispute where the prospect of a negotiated settlement seemed extremely remote, and where the sort of intervention that the Bill will allow would have been appropriate. If the amendment were accepted, in those circumstances
it would theoretically have provided an opportunity for the employers or the union to challenge the Secretary of State's exercise of the powers on the grounds that, in their view, collective bargaining had not failed. There would be an argument about whether or not it had failed. At the very least, that could delay the Secretary of State's intervention—
Baroness Turner of Camden: But—
Lord Rooker: I have not finished the sentence yet. The Secretary of State's intervention could be delayed, with the result that a potentially damaging industrial dispute could drag on, or that the fire-fighters would not get the pay rise in those circumstances. That is the issue ultimately.
Baroness Turner of Camden: The Minister talks about whether you know that collective bargaining has failed or not. In most collective negotiating agreements there is usually provision for failure to agree. If failure to agree is recorded, that would automatically indicate that the negotiations had come to a full stop.
Lord Rooker: I suspect, and I hope, that my noble friend will not claim that the latest dispute has been a brilliant example of professional negotiation by either the employers or the trade unions. Frankly, it was a thundering disgrace that it dragged on so long. It is to everyone's credit that we have reached a settlement that has been agreed with the timetables that I deployed at Second Reading.
Lord Wedderburn of Charlton: I am much obliged to the Minister. As I understand it, my noble friend did not ask about the recent dispute; she asked whether it is not common in collective bargaining to have a procedure where the two parties register a failure to agree. Is the Minister aware of that or not?
Lord Rooker: Yes, but I am debating a Bill about the Fire Service. I will not go down any cul-de-sacs at anybody else's invitation. This is a very specific Bill relating to one specific industry, with a specific time limit. It does not matter how many times anybody raises anything else, I will not deviate from the Bill. That is a simple issue.
I shall now discuss the second point in the amendment tabled by the noble Lord, Lord Campbell of Alloway. The next component provides an alternative basis for the exercise of power if,
- "the award of a mandatory arbitral tribunal independent of Government has been ignored or rejected".
It would go against the purpose of the Bill; that is to say, if the two parties to the negotiation cannot agree, the democratically elected Secretary of State with responsibility for the provision of an effective Fire Service and for the public funding of the service should
step in to make a settlement. A difficulty arises here. It is true that it requires a difficult decision both by my right honourable friend and the others involved. We do not think that those decisions should be handed over to a third party.The issues which caused most difficulty in the fire dispute were those such as, for example, how the Fire Service should move from the prescribed national fire cover standards to a locally risk-based approach to fire cover; and the implications for staff, especially as regards the shift patterns. It is difficult to see how those would have been arbitral issues in the recent dispute because they were much wider than, let us say, 4 per cent, 10 per cent or 11 per cent.
Ultimately, you cannot arbitrate about policy questions such as the right basis for fire cover—
4.30 p.m.
Lord Wedderburn of Charlton: Of course you can.
Lord Rooker: My noble friend can disagree and he can make his own speech, but I am making mine. I am making the point that it is more difficult because it is not so precise to make an arbitral award on a policy issue as it is on a pay rise or a timetable for a pay rise.
The Bill requires the Secretary of State—and this tends not to be mentioned—to consult the negotiating body before he makes any order fixing or modifying conditions of service. So this is not something he does on a hunch—waking up one morning and doing it without telling anyone. He will be required to act as a reasonable Minister and to take the views of that body into account before finalising his proposals. As I have made abundantly clear, John Prescott would also consult his statutory advisers, who are the Central Fire Brigades Advisory Council. So the Secretary of State would be fully informed of the views of the stakeholders, the employers, the union and the central body.
I turn to the third element of the new clause; that relating to affirmative resolution during a state of emergency. The noble Lord suggested that if there is no failure of collective bargaining or a tribunal, but there is a state of emergency, both Houses of Parliament must agree by affirmative resolution that the power should be exercised.
In that event, the Secretary of State would not have to consult the negotiating body on his proposals, as would normally be the case under Clause 1(3). The situation is therefore separate. Amendment No. 1 is capable of more than one interpretation. First, it could mean that the Secretary of State could not use the power at all unless a state of emergency existed, and unless Parliament at first agreed to the use of the power. Alternatively, it could be interpreted as meaning that Parliament would have to agree the precise terms of the Secretary of State's order, fixing or modifying the conditions of service. But neither of those seem appropriate or workable.
We do not of course want to have a state of emergency existing in any event. If there were a state of emergency—and we can only guess the kind of reasons
that would bring that about; a chemical or biological attack, say—we know that the fire fighters of this country and all the emergency services would act responsibly. I am absolutely in no doubt about that whatever, irrespective of ongoing disputes or arguments. We know that that would be the case because we have examples from minor disputes when people have left picket lines.The noble Lord, Lord Campbell, indicated his belief that such powers should be exercised only during a state of emergency. During the Second Reading debate, he referred to many aspects of the emergency legislation passed during the Second World War. We have a bit of a problem here. We cannot reach the point where we have to go to the House of Commons and to this place and say, "If a dispute flares up again, we cannot sort it out because there is not a war on". We have a problem about that part of the amendment relating to the state of emergency.
That brings me to the other aspect. If the Bill is activated, we are in serious trouble. We do not want to use the Bill, as I have made repeatedly clear. Both Houses, as the amendment requires, would have to approve the Secretary of State's action by affirmative resolution. The powers in the Fire Services Act 1947, which are similar to the powers in Clause 1(1)(a), were, when first enacted subject to the powers of the negative resolution procedure, as are the current powers to set the pay of a number of other public sector groups, including the police and teachers. Nor do they require for there to be a state of emergency in existence before they are exercised.
It would therefore be odd if the power were subject to the affirmative resolution during the state of emergency. We all know how long that would take and it could be done only when Parliament was sitting. From my recollection, Parliament sits on average 34 weeks per year. This House sits rather more weeks than another place, but it is not far away from that. So, there are 20 weeks per year when Parliament is not sitting. Even with the noble Lord's suggestion that the consultation requirement in Clause 1(3) would not be needed in these circumstances, this would still mean a delay in the exercise of the power.
The final part of the amendment tabled by the noble Lord, Lord Campbell of Alloway, would make it unlawful to take collective action, whether primary or secondary, at the instigation of a trade union with the intention of disrupting fire brigade services.
So, the position has been made clear. I do not have to answer, and I shall not, any argument about the right to strike. It has been made crystal clear to everyone in this House and another place, outside this House and in the White Paper, that we have no intention in this Bill, or the Bill which will result from the White Paper, of removing the right to strike. So, that should be the end of that, and that has been accepted. As far as I know, that is not in dispute and no one has accused the Government of lying or having a hidden agenda.
Therefore, in those general terms—there are some important points in the noble Lord's amendment—I hope he will see that I cannot accept it. However, the
points he raised have given me an opportunity to put some issues on the record, which I shall refer back to later, to avoid repetition.
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