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Lord Northbrook: My Lords, I support my noble friend Lord Campbell of Alloway in his opposition to

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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.

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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.

Lord Rooker: My Lords, first, I do not know, and, secondly, I had already sat down.

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

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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 emergency"

The 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,

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    "the 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 service"

other 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".

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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—

    (a) the parties to the dispute, or

    (b) ACAS".

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:

    "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

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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.

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