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Lord Evans of Temple Guiting: My noble friend has spotted that a word is missing. We are happy to accept the amendment because it was certainly not our intention to leave out the word. I hope she will understand that we have to check the point with the parliamentary draftsmen, but we are sure that the amendment can be agreed.
The noble Lord said: The amendment is a request for an explanation as to why retrospective powers are needed. Thus far, the debates have left my noble friends and me in some perplexity about that point. Retrospective powers are always questioned, of course, whichever government they come from. They need very careful and special explanation.
I asked someone in the Fire Service what he thought a retrospective order would be about. He told me, "Oh, it'll be to approve pay rises in the past". I considered that to be a little unlikely, and I do not know that he had much ground for it. Of course, retrospective powers are qualified to the extent of subsection (5)(a) to (d), which allows there to be retrospective effects to fix or modify pay or allowances, and of course there is different provision for different cases, provision for exemptions, and incidental and supplemental provisions. Incidental, supplemental, consequential and transitional provisions always cause a little trouble with retrospective powers.
What exactly are the relevant types of case? The Government must have some very clear ideas or they would not have included the highly unusual power to make retrospective provision. What is one to say if asked for advice, by either employers or members of the fire brigade, as to what their position is if retrospective provision is made modifying pay and allowances, and if something has been done in the past on either side that infringes the new rights?
As I understand it, a retrospective order would alter the rights as from the date of retrospection; that is, if we made an order today that is effective from last Wednesday, from last Wednesday those are the rights and duties. If something is done between last Wednesday and now, someone is in breach of the legal provision of the order. Is that right in this case? If so, what advice is being givenor will be given, if it is appropriateabout acts that will infringe the new order that retrospectively changes rights and duties from last Wednesday?
All retrospective provisions have that problem, and all governments are very careful to explain exactly what they mean and what the effect is of a retrospective statute or order in terms of the rights and duties of the citizens affected. We tabled the amendment to leave out subsection (5) because, on the explanations thus far, questions of that kind have not been answered. I beg to move.
Lord Campbell of Alloway: I gather that this is in every sense a probing amendment and I seek the help of the noble Lord to construe it. I understand that subsection (5)(a) is related to orders made under Clause 1(1)(a), while subsections (5)(b), (c) and (d) relate to orders made under Clause 1(1)(b). If that is right then the retrospective provision relates only to subsection (5)(a) and not to subsections (5)(b), (c) and (d). But that does entirely clear the hurdle of inquiry because it leaves the question of whether it is or is not proposed that, with retrospective effect, one could reduce wages by order. If it is not, then that ought to be made plain. At present that is left wide open.
I ask the question because this part of the Bill would remain under amendments to Clause 1 which I am about to table for consideration on Report, so I am concerned about it. I ask the noble Lord if he could deal with my query.
Lord Rooker: For the avoidance of doubt, to "modify" means to increase. Since subsection (6) makes it clear that pay and allowances may not retrospectively be reduced, then to modify must mean to increase. There is no problem here in terms of probing the intent of subsections (5) and (6). Subsection (6) is declaratory, simply for the avoidance of any doubt, and serves to make it clear that we are not taking any powers to reduce income. So to modify would mean to increase.
Subsection (6) is a straightforward, standard provision and is not innovative in any way. It means that, as set out in subsection (5)(a), (b), (c) and (d) that the orders refer to retrospective pay and allowances; that is, to modifyto increaseelements that may be uncertain, such as dates and times which depend on when the legislation is enacted, thus triggering changes that will need to be made. An order may necessarily include increases from an earlier date, but it would not include reductions. This Bill is not about reductions in pay.
In effect, we need the power because if it were not provided for, the Secretary of State might have to make a whole series of different orders if he wanted to give slightly different directions to different fire authorities or groups of authoritiesbecause of the way the fire service works. Some authorities are county authorities, while some are joint authorities. Similarly, the provision is needed if pay award increases are different for different groups of fire brigade members. If we lost the power set out in subsection (5), it would create massive uncertainty and doubt over what the Secretary of State could and could not do. The subsection sets it out clearly: the Secretary of State cannot reduce pay, but he can make changes in one order that would cover many fire brigades, groups of fire brigades or groups of workers. If the power were not included, then I suspect that there would be doubt and uncertainty, leading to my learned friends having a field day in the courts and thus further delaying the increases in prospect.
Lord Campbell of Alloway: While accepting the noble Lord's explanation about different groups and the difficulties that could arise, if to "modify" really means to increase, I wonder whether he could ask the parliamentary draftsman if there is any fundamental objection to stating "increasing the pay and allowances" rather than "modifying" them. Although I fully understand the response given by the noble Lord, Lord Rooker, with respect, it does not quite justify the tension of the word "modify" when to modify in fact means to increase. I hope that the noble Lord takes my point.
Lord Rooker: I almost said in my first response that it is a fact that we are not talking about increases, although "modifying" by and large will mean increases. We are not about to decrease pay. On the other hand, modifying provisions for different groups of workers means that some may stay the same while others receive increases, although it may be argued that they should all stay the same. I suspect that that is why the parliamentary draftsman has used two subsections to make the point that, while the flexibility is provided in subsection (5), the restraintfor the avoidance of any doubt and to make it absolutely clear that the Secretary of State does not wish to exercise the power retrospectively to reduce pay and allowances to a personis provided in subsection (6). I suspect that that is why the provisions have been drafted in this manner.
Subsection (5) goes much wider than subsection (6), which concerns only pay. As I have already made clear, the provisions may vary for different groups of fire brigades and for different groups of workers. Not everyone does the same job and therefore the pay rises may or may not be the same. The functions of subsections (5) and (6) are wholly different. Subsection (6) provides a restraint, as it were, on any reduction of pay and allowances.
Lord Rooker: Yes. Subsection (6) refers to the pay element, which is considered only in subsection (5)(a). The remaining paragraphs relate to other matters in an order that the Secretary of State may make. Those matters would not be related to pay or allowances.
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