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
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
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.
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
1 See: http://www.communities.gov.uk/documents/fire/pdf/nationalframework200811.pdf
First Report from the Committee for Privileges, Session 1998-99,
HL Paper 106. Back