Previous Section Back to Table of Contents Lords Hansard Home Page

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

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

The Deputy Chairman of Committees: It is in order for him to speak to it, but it is not in order for him to move it at the moment.

Lord Lea of Crondall: I am speaking to Amendment No. 33.

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

Those are two fundamentally different situations, as any practitioner of industrial relations and collective bargaining would confirm. It is self-evidently relevant to where we are with the 2003 agreement and its phased application. It is important to see how that fairly basic analysis fits into the time scales of this year, next year and the year after. Obviously, in the context of a staged approach of implementation of the 2003 agreement,

3 Jul 2003 : Column GC279

sorting out any issues of application in practice, we have a linkage that we must be clear about. With the time scales, we have a two-year or three-year phased agreement. We have a Bill with a two-year sunset clause. A White Paper has been mentioned, but that will clearly kick in after this. In practice, we are addressing the period of the 2003 agreement.

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

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

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

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

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

3 Jul 2003 : Column GC280

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

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

7.15 p.m.

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

Before coming to Amendment No. 10, with which we are confronted, together with Amendment No. 12, apparently it is in order to discuss my noble friend Lord Lea's Amendment No. 33. As he has not moved it, the text may not appear in Hansard. I therefore want to make sure that it is in Hansard because he spent most of his time discussing, not Amendment No. 10, but Amendment No. 33. Amendment 33 states:

    "For the avoidance of doubt, nothing in this Act affects the possibility of the parties agreeing on a reference to mediation, conciliation or arbitration on the interpretation of the June 2003 agreement between the Fire Brigades Union and the local authority fire service employers".

With the greatest respect, I do not think that that adds very much to the Bill. The Bill is about powers of the Secretary of State. Nothing in the Bill affects the possibility that they might say, "We want to refer something", or one of them might say, "Let's agree on referring something to arbitration"; of course not, but the amendment does not say anything about whether the Secretary of State has power to make an order in that circumstance.

In a sense, this is ground that we have partially covered previously in the debate on my noble friend Lord McCarthy's speech on Amendment No. 9A. But nothing in Amendment No. 33 does anything about the sanctity of the parties owning the agreement. I have to say that I have one slight disagreement with my noble friend Lord Lea. He referred to the very well

3 Jul 2003 : Column GC281

known distinction, which is sometimes couched in the formula that where you make an agreement, particularly a collective agreement, disputes may arise with regard to application and interpretation. Some people call those "disputes of rights". I have never thought that that was a very good title, but it is the usual title in the literature.

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

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

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

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

It is the first time where third party intervention and arbitration which is agreed by the parties to be binding upon them has come before your Lordships. The previous amendment, Amendment No. 9A, was about a case where they had settled. In a sense the new amendment now before us deals with that again in a case where they settle the issue by agreement, but goes on to state that or, where they subsequently,

    "agree jointly to refer the issue to conciliation, mediation or arbitration the result of which is agreed by them to be binding upon them".

3 Jul 2003 : Column GC282

It is in that case that I adopt the words of my noble friend Lord Lea: "where the procedures are their property and they have agreed", except perhaps for tremendously difficult emergency situations which the Government could perfectly well draft. If they cannot, they must go outside and find some advisers who can. If they want to make exceptions to that, let them draft them. But otherwise, please, do not destroy the integrity of third party intervention voluntarily accepted by the parties with all the problems that may have for fire authorities.

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

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

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

Next Section Back to Table of Contents Lords Hansard Home Page