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Lord Wedderburn of Charlton: Will the noble Baroness give way?

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

Lord Wedderburn of Charlton: I am much obliged to the noble Baroness. I am most grateful. Before she finally concludes, I think I am right that she is now on Amendment No. 3. I did not want to make the same mistake twice. I apologise very much to her for anticipating questions that belong to other amendments. But as we have seen, purely in parenthesis, Amendments Nos. 3 and 4 hang very much together, from what the noble Baroness said. Since she says that we are to understand Amendments Nos. 3 and 4 together as implying a power to ban strikes, would she agree with the proposition put forward that,

I quote that because it is the central thesis of the International Labour Organisation based on convention 87. I take the opportunity, therefore, of asking whether it is the official policy of the Opposition not to abide by that proposition.

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

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

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

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

Amendment, by leave, withdrawn.

[Amendment No. 4 not moved.]

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Lord Wedderburn of Charlton moved Amendment No. 5:

    Page 1, line 16, at end insert—

"(2A) Before the Secretary of State makes directions by virtue of section 1(1)(b) which affect local needs or any other matters within the terms of section 19 of the Fire Services Act 1947 (c. 41) (fire brigade establishments to be determined in accordance with approved schemes) as amended by section 7 of the Fire Services Act 1959 (c. 44) (establishment schemes), he shall engage in consultation with local authorities and other persons who would legitimately have expected to be consulted—
(a) if he had been exercising powers under section 19 of the Fire Services Act 1947 before the amendment of part of that section in section 120 of the Local Government Act 2003; or
(b) in a manner parallel to the terms of guidance on consultation issued for and advice on "best practice" given to fire authorities in respect of Integrated Risk Management Planning, or in the absence of such final guidance the current draft thereof."

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

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

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

    "The following provisions cease to have effect—

    (a) section 19(3) to (8) of the Fire Services Act 1947 . . .

    (b) paragraph (a) of section 7(2) of the Fire Services Act 1959",

which I add was the subsection that amended Section 19 of the Fire Services Act 1947.

Both under the 1947 Act and under current proposals the authorities that were relevant to the various matters under, in the first case, the law as it is before the Local Government Bill takes effect, and the law as it will be—at any rate in regard to guidance, as I understand it—after that Bill and this Bill, if it is passed, come into effect, will require a very large amount of consultation. What first of all strikes one when one examines these various statutory and what

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are sometimes called "soft law" codes is that the amount of consultation required under them in the past and in the future is strikingly different to the amount of consultation which the Secretary of State needs to engage in under this Bill.

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

    "consult such persons who—

    (a) are, in his opinion, likely to be affected by the proposed direction, or

    (b) represent persons who are, in his opinion, likely to be so affected"

where the order which he proposes is to take effect under Clause 1(1)(b) of the current Bill. Neither of those sections go anywhere near as far as what I understand to have been the past law and future rules on consultation.

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

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

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

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

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

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

    "(i) It must be at a time when proposals are still at a formative stage

    (ii) sufficient reasons for any proposal are given to permit intelligent consideration and response

    (iii) adequate time must be given for such consideration and response [and]

    (iv) the product of consultation must be conscientiously taken into account in finalising any statutory proposals".

A circular distributed at the time stated:

    "The Secretary of State regards it as desirable that any proposal for a reduction which requires approval should have been sufficiently widely publicised in sufficient detail and with sufficient time to enable any interested party to make representation so that they can be considered by the fire authority".

I appreciate that that was under the 1947 Act and relates to the first part of my amendment or my question as to why this should not be the basic rule, whatever exceptions are made in terms of emergencies or special events.

The second part of my amendment, which is an alternative and not a conjunction, states that the consultation must normally be equivalent to the terms of the guidance on consultation and the best practice advice given to fire authorities. There was great trouble on this on 24th June when the Local Government Bill was debated in Grand Committee.

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Members of the Committee will find it in Hansard dated 24th June. I had the column reference, but I fear that I do not have it now.

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

5.45 p.m.

Lord Rooker: It has been there all the while.

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