Select Committee on Merits of Statutory Instruments Twenty-Fourth Report

Twenty-fourth Report

Instruments drawn to the Special Attention of the House

The Committee has considered the following instruments and has determined that the special attention of the House should be drawn to them on the grounds specified.

A.  Fire and Rescue Services (National Framework) (England) Order 2008 (SI 2008/1370)

Summary: This Order gives effect to the Fire and Rescue Service National Framework 2008-11. Among other things, the National Framework, in Chapter 3, deals with "diversity and workforce". This contains restrictive provisions relating to employees' membership of or affiliation to organisations, groups or societies whose character is considered to be incompatible by individual Fire and Rescue Authorities with the Core Values of the Service. We are concerned that these national-level provisions (which potentially bear upon ECHR rights) are cast in general terms and do not specify particular organisations (unlike the approach followed in the police force and prison service); our concern has not been allayed by explanations by the Department.

This Order is drawn to the special attention of the House on the ground that it gives rise to issues of public policy likely to be of interest to the House.

1.  The Department for Communities and Local Government (DCLG) have laid this Order under section 21(6) of the Fire and Rescue Services Act 2004. An Explanatory Memorandum (EM) and a copy of the "Fire Rescue Service National Framework 2008-11" ("the National Framework") have also been provided.

2.  The Order gives effect to the National Framework, which was published by DCLG on 20 May 2008[1] and which will have effect as a revision of the 2006-08 National Framework. DCLG say that the National Framework sets out the Government's priorities and objectives for Fire and Rescue Authorities (FRAs) and what they should do to achieve them: "It provides strategic direction from central government while ensuring that authorities continue to make local decisions."

3.  The National Framework consists of several chapters, dealing with different aspects of FRAs' business. Chapter 3 is entitled "Diversity and Workforce", and is summarised as covering "the importance of mainstreaming diversity in all levels of the Fire and Rescue Service and workforce development, training and health and safety."

4.  We noted that Chapter 3 contains a statement of FRAs' expectations of their staff. In particular, at paragraph 3.3, the National Framework states the following:

"3.3 In order to engender the trust and confidence of all sections of the community in the integrity of Fire and Rescue Authority employees and to meet their statutory obligations to promote equality, both in employment practices and service delivery, Fire and Rescue Authorities will need to ensure that:

  • all staff and those applying to join meet the standards of honesty and integrity which the public expects
  • all staff and those applying to join are aware that membership of or affiliation to organisations, groups or societies which espouse views, hold doctrines, have policies or undertake activities which are incompatible with the Core Values would make them unsuitable for employment within an organisation which serves the whole community. grievance and disciplinary processes, in particular to deal with bullying and harassment, are fair, open, transparent and timely."

5.  We considered that the generality of expression in the second of these bullet-points made it difficult to understand which organisations, groups or societies might be thought to be within the ambit of these provisions. We asked the Department to clarify the underlying intentions, and to give an explanation of the compatibility of the provisions with human rights legislation, notably freedom of assembly and association as expressed in the European Convention on Human Rights (ECHR).

6.  In response to our concern, DCLG acknowledged that paragraph 3.3 of the National Framework potentially interferes with rights under article 11(1) of the ECHR, but argued that any such interference is justified by reference to article 11(2). Article 11(2) provides that "no restrictions shall be placed on the exercise of [article 11(1)] rights other than such as are prescribed by law and necessary in a democratic society in the interests or national security or public safety, for the prevention of disorder of, for the protection of morals or for the protection of the rights and freedom of others." DCLG have commented to us that "some political parties, depending on their constitutions, aims etc, can be regarded as so extreme that the restrictions encompassed by paragraph 3.3 of the Framework are necessary. [FRAs] pursue a legitimate aim - providing to everyone equally a service which is of vital importance to life, health and, in the event of a major emergency, public order. The restrictions in paragraph 3.3 impinge on the ECHR rights (articles 2 and 8) of members of the public. The Department acknowledges there is a balance to be struck between the rights of the individual and the public but it considers it is proportionate to provide that membership of (or affiliation with) such organisations is inconsistent with employment in the FRA because the risks involved in doing otherwise are so great."

7.  We have received further information from the Department which elaborates on their statement above. That information is printed at the Appendix. In setting out the background to the inclusion of these provisions in the National Framework, the Department have stressed the need for Fire and Rescue Services to engage closely with all diverse communities in society, which in turn depends on gaining the trust of such communities.

8.  The Department have also pointed out that in 2001, by means of a Prison Service Instruction (42/2001), the Prison Service made it a job requirement for new recruits that they could not belong to any group or organisation that the Service considered to be racist; and that since 2005 similar restrictions have applied to members of police forces, in line with the Police Regulations 2003 (SI 2003/527, as amended). We note that three organisations have specifically been named at a national level in the context of the restrictions applicable to the Prison Service and the police force (namely, the British National Party, Combat 18, and the National Front). In contrast, it is DCLG's policy here that each FRAs must take their own decision as to which groups are incompatible with the Core Values, and hence whether membership of any organisation would make an individual unsuitable for employment. In our opinion, the generality of this provision is such to allow a FRA to proscribe membership of a number of religious groups as well as the political groups identified by DCLG.

9.  We do not take issue with the importance of the relationship between FRAs and the communities in which they operate. None the less, we think it right to draw the attention of the House to the inclusion in the National Framework of certain restrictive provisions which potentially bear upon ECHR rights and to our concern that these national-level provisions are cast in such general terms and do not specify particular organisations (unlike the approach followed in the police force and prison service).

B.  European Parliament (House of Lords Disqualification) Regulations 2008 (SI 2008/1647)

Summary: These Regulations disqualify a life peer for sitting or voting in the House of Lords and its committees while that peer is a member of the European Parliament. A European Council Decision of 2002 decided that "From the European Parliament elections in 2004, the office of member of the European Parliament shall be incompatible with that of member of a national parliament". The United Kingdom has a derogation from this rule until the European Parliament elections to be held in 2009. The Government intend these Regulations to fulfil the United Kingdom's Community obligation but we question whether they do so because the Regulations are limited to life peers and the provision relating to the writ of summons may prove ineffective. We understand that the Government did not discuss these Regulations with the House authorities or Committees before they were made.

These Regulations are drawn to the special attention of the House on the ground that they may inappropriately implement European Union legislation.

10.  The Ministry of Justice have made these Regulations, subject to the negative procedure, under section 2(2) of the European Communities Act 1972; they are accompanied by an Explanatory Memorandum (EM).

11.  Article 1.7.b of Council Decision 2002/772/EC in part provides:

"From the European Parliament elections in 2004, the office of member of the European Parliament shall be incompatible with that of member of a national parliament.

"By way of derogation from that rule and without prejudice to paragraph -3…members of the United Kingdom Parliament who are also members of the European Parliament during the five-year term preceding election to the European Parliament in 2004 may have a dual mandate until the 2009 European Parliament elections."

12.  There is no question that the Government have the power to make these Regulations under section 2(2) of the European Communities Act 1972: the Regulations are implementing a Community obligation which the United Kingdom Government are obliged to transpose into our domestic law. There is also no question that the Government are, under that section, at liberty to choose whether the negative or affirmative procedure applies to the instrument. The EM does not seek to justify the choice of parliamentary procedure but we wonder whether the negative procedure might have been chosen to avoid any question of the hybrid instrument procedure applying in this House.

13.  We asked the Government whether they consulted the House authorities or any Committee of the House (Privileges or Procedure) before making this instrument and they confirmed that they did not. We consider that unfortunate. While the principle of the policy is non-negotiable, there is scope for implementing the disqualification in a variety of different ways and the House should have been consulted on the options. Under these Regulations, MEPs will join aliens, bankrupts, those under 21 and those convicted of treason as the groups disqualified for membership of the House. When section 137 of the Constitutional Reform Act 2005 is commenced, the holders of high judicial office will also be disqualified for sitting and voting in the House. Each of these disqualifications is provided for differently, but each is provided for in primary legislation save for the age restriction which is found in Standing Order 2, first made in 1685.

14.  The provision relating to the writ of summons illustrates the different effect of different provision. Regulation 4(1) provides for the disqualification but Regulation 4(2) goes on to make provision about the writ of summons as well, presumably because the Government or European Parliament consider that the disqualification alone is not sufficient to implement the Council Decision. The Regulations provide that "No writ of summons shall be issued to a life peer while disqualified under this regulation". Writs of summons are issued for a Parliament. Thus, the MEP's current writ of summons to the House will remain live at the point of election in 2009 unless this Parliament of the United Kingdom has by then been dissolved. Similar overlaps are likely to apply to future Parliaments. The House of Lords Act 1999 approached the writs of the hereditary peers, whom that Act sought to exclude from the House, in a different way. It provided that "any writ of summons issued for the present Parliament in right of a hereditary peerage shall not have effect after that Session". The drafting of that section was itself considered by the law lords in a reference to the Committee for Privileges[2]. The Constitutional Reform Act 2005, in disqualifying the holders of high judicial office for sitting or voting in House of Lords and its committees, provides at section 137 that "A member of the House of Lords who is disqualified under subsection (3) is not for that reason disqualified for receiving a writ of summons to attend that House, but any such writ is subject to that subsection".

15.  While there is common ground between the political parties that the dual mandate should end, it strikes us that the distinctions between these provisions are ones which might have been of interest at least to a Committee of the House (Privileges or Procedure), if not the House itself.

16.  These Regulations apply only to life peers. While it so happens that only life peers are currently also members of the European Parliament, it is open to any member of this House to seek election to the European Parliament in 2009 and future elections. While the House might agree that it is unlikely that Lords Spiritual or lords created under the Appellate Jurisdiction Act 1876 might wish to stand, it is not inconceivable that an hereditary peer elected to the House under the provisions of section 2 of the House of Lords Act 1999 might wish to stand. There was one such peer from 1999 to 2004. These Regulations do not however make provision to prevent a dual mandate by an hereditary member of this House.

17.  The EM does not indicate whether the European Parliament considers that these Regulations comply with the Council Decision they implement. For our part, we question whether these Regulations may inappropriately implement the United Kingdom's Community obligations due to the nature of the provision about the writ of summons and because the Regulations apply only to life peers.

1   See:  Back

2   First Report from the Committee for Privileges, Session 1998-99, HL Paper 106. Back

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