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Environment Bill (H.L.]

8.50 p.m.

House again in Committee.

Schedule 1 [The Environment Agency]:

[Amendment No. 13 not moved.]

Lord Williams of Elvel moved Amendment No. 13A:

Page 114, line 7, leave out ("may") and insert ("shall").

The noble Lord said: In moving the amendment I shall, for the convenience of the Committee, speak also to Amendments Nos. 13B to D, 14, 14A and B, 25 and 26, 28, 29 to 32, 148, 149 and 151. It is a large grouping, but the essence of the amendments relates to the position of employees and staff in the bodies whose functions are to be transferred to the new agency. Perhaps I may refer Members of the Committee to page 3 of the Marshalled List where Amendment No. 13A can be found. If it is accepted by the Committee, the amendment would oblige the agency to pay the pensions, allowances, gratuities, and so on, to which the

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staff and employees would be entitled were they to remain with the authority which is to be transferred to the agency.

Amendment No. 13B is designed to ensure that the local government superannuation scheme shall,

    "make provision for the funds of the National Rivers Authority to [be vested] in the Agency and become the funds of the Agency",

in the sense that the agency will have its own superannuation scheme and that the benefits of that scheme will accrue to those who have accrued benefits within the NRA scheme.

Amendment No. 13C seeks to ensure that persons who have been "officers or employees" of the NRA and the other organisations which are to be transferred into the agency have the same rights. Amendment No. 13D seeks to ensure that the pensions to which people who have been employed until now are entitled should be transferred immediately without any break in their entitlement.

Amendment No. 14 speaks for itself.

    "The Agency may, with the approval of the Secretary of State, appoint such officers and employees as it may determine [to negotiate with] the trade unions recognised by the Agency for the purpose of collective bargaining".

I do not believe that I need to argue that point further.

Amendments Nos. 25 and 26 again relate to the position of staff. We believe that there should be a staff commission as set out in Amendment No. 31 which provides that the agency shall,

    "adopt the Local Government Superannuation Scheme",

and in Amendment No. 32 where we propose that the agency shall promote health and safety.

There are substantive amendments in the group. But we believe—and we have been advised by the unions concerned —that there is a gap as regards the future of employees and staff in the new agency when they are transferred from the old organisations. When I say "old organisations", I mean the National Rivers Authority, HMIP and certain local authorities.

These are all probing amendments to ask the Government where they stand. We are not entirely happy with the position; indeed, the trade unions involved are not happy.

Amendment No. 149 is designed to ensure that the TUPE regulations apply and Amendment No. 151 is designed to ensure that those regulations and the transfer arrangements apply in Scotland. I realise that I have introduced a rather long and complicated group of amendments. However, the essence of the argument is still the same; namely, that there should be a proper method of ensuring that those who are employed on a staff basis, an employee basis, or on any other basis, should have the same rights under the new agency as they enjoyed in their previous employment. The benefits they had in their previous employment should accrue when they become employees of the new agency. I beg to move.

9 p.m.

Viscount Ullswater: The noble Lord, Lord Williams of Elvel, moved this rather large group of amendments with commendable brevity. I can only apologise to

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Members of the Committee if my reply is somewhat lengthier than the noble Lord's introduction. There are matters of some importance involved with which I may have to deal in considerable detail. The amendments cover a variety of matters which relate to staffing. I shall speak, first, about those which deal with the transfer of staff to the agency and then about several others which deal with more general staffing matters and with pensions.

First, I should like to deal with Amendment No. 29. This concerns the Secretary of State's power, at any time before the transfer date, to modify a transfer scheme which he had previously made or approved. It would require him to consult the body which had prepared the scheme. We support the general intention behind the amendment. The Bill provides for consultation in other cases where a scheme is modified, and we are happy to correct the anomaly. But, as with those other provisions, we would wish to require consultation of the agency as well as the body which prepared the scheme. I undertake to consider the matter further with a view to introducing a revised amendment at a later date.

I now come to Amendment No. 149. This would, in effect, as the noble Lord, Lord Williams, said, provide that Schedule 2 is "without prejudice" to the provisions of TUPE. But such an amendment would be superfluous. All persons transferring to the agency will either be covered by TUPE or given equivalent protection under paragraph 3 of Schedule 2. There is nothing in the Bill to suggest otherwise.

Amendment No. 30 seeks to establish a staff commission to oversee the transfer of waste regulation staff to the agency. Amendments Nos. 25, 26 and 28 all relate to that commission. I should point out that Amendments Nos. 25 and 26 would involve the commission in the transfer of staff from Her Majesty's Inspectorate of Pollution, although Amendment No. 30 refers only to staff employed by waste regulation authorities.

We are, of course, anxious to see that the transfer of staff from waste regulation authorities to the agency is orderly and fair. We have therefore considered the case for a staff commission with great care. But we are not persuaded that a commission is necessary or appropriate in this case. I shall summarise the reasons.

First, staff will either transfer to the agency or remain with local authorities. This differs from local government reorganisation where, for example, successor authorities have a discretion, within a framework set by the Local Government Staff Commission (and the provisions of employment law), about the number of staff whom they take on. Furthermore, local government reorganisation is potentially a much more complex exercise which is likely to involve movement of relatively large numbers of staff, sometimes from one authority to several successor authorities, and affects all staff in each reorganised authority.

Secondly, there is likely to be relatively little uncertainty about who should transfer to the agency. The effort currently devoted to waste regulation in England equates to around 1,150 full-time staff. Over

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1,000 staff work for more than three-quarters of their time on waste regulation. Therefore, situations where a judgment is needed about who will transfer will be few. In Wales a higher proportion of staff work for less of their time on waste regulation, but the number of staff is small. While in a few cases, therefore, identification of staff to transfer may not be clear-cut, the numbers are such that it should be possible to resolve any difficulties without recourse to a commission. We have already issued initial guidance to help authorities identify who transfers. This was developed in consultation with the local authority associations, and we shall continue to involve them in the development of any further guidance. We are confident that this will provide a basis for authorities, in consultation with the agency and their staff, to draw up schemes. In cases of dispute, the Secretary of State would make the final determination.

Thirdly, there have been suggestions that a commission could consider issues relating to the agency's management structure and appointments to specific posts and locations. If it did it would need to consider the interests of staff inherited from all predecessor bodies. But these are key issues for the environment agency advisory committee and the agency board. They should not be delegated to a separate commission which would be less well placed to balance the needs of the agency and, unlike the agency's management, would not need to build long-term relationships with the agency's staff and trade unions.

The Committee should also note that, as I have already said, staff who transfer will have protection under, or equivalent to, TUPE. I therefore submit that the establishment of a staff commission is unnecessary and would not justify the associated administrative and financial costs. Before leaving this issue, however, I should like to refer briefly to the situation in Wales and Scotland.

In Wales because transfer to the agency coincides with a general local government reorganisation, the Welsh Staff Commission on Local Government Reorganisation will keep in touch with the agency transfer. That is primarily to ensure that staff are not inadvertently omitted from, or double counted in, transfer schemes. The commission will not, however, have a wider role in relation to the agency transfer.

In Scotland the Bill provides for the remit of the relevant local government staff commission to be extended to the transfer to SEPA. But the situation in Scotland is more complex. Not only will general local government reorganisation proceed in tandem with the establishment of SEPA, but local authority air pollution control will also transfer to the agency. We do not, therefore, consider that this sets a precedent for a separate staff commission in England and Wales or for the remit of the Local Government Staff Commissions in England or Wales to be extended. I should add that regarding the commission in Scotland we see no need for Amendment No. 151 in the name of the noble Lord, Lord Carmichael. As staff who transfer to SEPA will have protection under TUPE or equivalent provisions, it is unnecessary to extend the commission's remit in that way.

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I now turn to amendments dealing with other staffing matters. Both Amendments Nos. 14 and 32 deal in some way with the agency's relationship with trade unions. Amendment No. 14 would change existing provisions by requiring that the terms and conditions of service of staff appointed by the agency must be agreed with the trade unions recognised by the agency for the purpose of collective bargaining. We take the view, however, that employers should be free to decide such matters for themselves in the light of their own circumstances and needs. The agency is no exception. It will be governed by the same laws that protect the rights of employees and employers generally. I am not aware of any other public body that operates under such a statutory requirement as proposed by that amendment.

I should stress that there is no intention to discourage the agency from consultation with trade unions. Consultation and negotiation with trade unions is well established in the existing public bodies from which staff will transfer. Furthermore, I understand that the advisory committee of my noble friend Lord De Ramsey intends to arrange an early meeting with the trade unions representing the employees who will transfer to the agency. I hope that noble Lords will agree that this amendment would be an unnecessarily onerous statutory control.

Turning to Amendment No. 32, this seeks to dictate the agency's approach to its health and safety responsibilities. We have no argument either with the involvement of trade unions or with the establishment of joint health and safety committees. However, employers' responsibilities for the health, safety and welfare of their employees are already laid down in the Health and Safety at Work etc. Act 1974 and in regulations under that Act. Those provide for the appointment by recognised trade unions of safety representatives, and for the employer to establish a safety committee if requested to do so by two or more safety representatives. I therefore hope that the Committee will agree that the amendment is neither necessary nor appropriate.

Finally, I come to Amendments Nos. 13A, 13B, 13C, 13D, 14A, 14B and 31, in the name of the noble Baroness, Lady Hilton, but moved by the noble Lord, Lord Williams. Those raise a number of separate points concerned with pensions, which I shall deal with in turn. I well appreciate that pensions are a matter of concern to staff. But, as I shall explain, I believe that the amendments are inappropriate.

First, Amendments Nos. 13A to 13D and 31 appear to require the agency to offer pensions to staff only in accordance with the local government superannuation scheme. I can confirm that the agency, through amendments to secondary legislation, will be designated as an administering authority for that scheme. But the use of primary legislation to require the agency to offer pensions only under that scheme would be unnecessarily restrictive. It may be the case in the future that the agency wishes to offer different employer's occupational pension schemes to different classes of employees. Indeed, while most of the agency's future staff are currently members of the local government

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superannuation scheme, those now in HMIP are members of the principal Civil Service pension scheme. We are still considering whether it would be appropriate for the agency to offer those staff membership of only the local government superannuation scheme.

Secondly, Amendment No. 13A goes even further by requiring the agency to pay a pension to each member of its staff. But a distinction can be drawn between staff transferred to the agency whose employment is already pensionable, and new recruits who are offered jobs in the future. Existing staff whose employment is pensionable must be offered comparable pensions by the agency. This is a general requirement of contract and employment law. If such an offer were not made the staff concerned could resign and claim an unfair constructive dismissal. The agency must, however, have the same freedom as existing employers (including NRA and waste regulation authorities) to offer jobs to staff which are not pensionable—for example, staff employed as casuals.

Thirdly, Amendment No. 13B makes provision for the pension funds of the National Rivers Authority to vest in the agency. However, the pension funds of the National Rivers Authority will automatically transfer to the agency along with the NRA's other property, rights and liabilities, and there is therefore no need to specify this on the face of the Bill.

Fourthly, Amendments Nos. 14A and 31 refer to the water authorities superannuation fund. That fund was wound up when the water industry was privatised. But I assume that the reference is to the "closed fund" for ex-water authority pensioners for which the National Rivers Authority became responsible. We are presently considering what future arrangements would best serve the interests of the closed fund pensioners and the taxpayer. On a technical point, Amendment No. 14A would also appear to prevent the setting up of a new agency fund which would accommodate all agency employees, and not just those transferred from NRA.

Fifthly, Amendments Nos. 14B and 31 would require the agency to establish a joint advisory committee to oversee the management of the scheme. However, regulations under the local government superannuation scheme already require administering authorities to act prudently in the management of their funds. We would not wish to prescribe further in this legislation the particular arrangement that the agency will follow. But we will be concerned to see that its arrangements follow good practice for pensions administration.

Sixthly, Amendment No. 31 would also require the agency to make appropriate funding arrangements for its scheme. This is unnecessary. All administering authorities for the local government superannuation scheme must comply with funding arrangements prescribed in regulations and designed to safeguard the viability of their individual schemes.

Finally, Amendment No. 31 also deals with arrangements for the transfer of service. Where employees transfer between individual funds set up under local government superannuation scheme rules prescribed in regulations, they are provided with year for year transfers of service. This will apply to persons transferring to an agency fund from the NRA fund, or

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individual local authority funds. Where persons transfer from schemes outside the framework of the local government superannuation scheme, arrangements particular to those transfers will need to be put in place.

This group of amendments has covered a wide range of issues. I well understand noble Lords' concern for the fair treatment of the agency's future staff. I have agreed to consider further the matter raised by Amendment No. 29. But, otherwise, I hope I have persuaded the Committee that the amendments are unnecessary or inappropriate. I understood from the noble Lord, Lord Williams of Elvel, that these are probing amendments. I felt that it was important to deal with them, perhaps at a greater length than the Committee might have wished at this hour of night. However, I ask whether the noble Lord will be prepared to withdraw them.

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