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Baroness Hamwee: I am sure that there must be a clearer way of expressing those points. I shall have to take this away. While not for a moment do I suggest that the noble Lord has not given me the assurances in good faith, I hope to be able to read the words and find the same reassurance as I heard when he spoke. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 29 not moved.]

Baroness Hanham moved Amendment No. 30:



"( ) No order shall be made under this section unless a draft of the order has been laid before, and approved by resolution of, both Houses of Parliament."

The noble Baroness said: This amendment would ensure that any proposed order would be brought before the House for consideration.

There are huge problems with this Bill, as we have discovered over the course of our consideration of it in Committee. Concerns have been expressed on both sides of this House, as was the case in the other place. If any order is to be made relating to this Bill, then that order must be laid before both Houses for a positive resolution in its favour.

I can almost hear the Minister's response saying that there would not be time to do that. It might be that an emergency decision would need to be taken on a negative resolution, but that will not do with regard to this Bill. Sufficient concern has been expressed about it to justify the request that any provisions brought forward under it by statutory instrument ought to be laid before both Houses for consideration before they are passed into statute. I beg to move.

Lord Campbell of Alloway: One of the great worries with regard to this Bill is emergency legislation; that is,

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an order made in a state of emergency as distinct from orders made otherwise. On those there is a serious argument about arbitration but, on the emergency aspect, there is not. Action may have to be taken at any time, but what would happen?

I think that the Houses of Parliament sit for about one third of the 52 weeks in a year.

Lord Rooker: The Houses sit for two thirds of the time.

Lord Campbell of Alloway: What would happen if an emergency arose when the Houses were not sitting? This seems a very unsatisfactory proposal. How will the Secretary of State be able to deal with the emergency, under the Bill either as it stands or as I am seeking to amend it? The emergency aspect is the most worrying. The only way it could be dealt with, in effect, is that when a situation arose where immediate action had to be taken in the public interest, the Secretary of State should have the power to make the order—if that agreement were carried in an amendment.

The Secretary of State would always be subject to the supervisory jurisdiction of the High Court. Although for all practical purposes it would not happen, if a Secretary of State in attending to his duties sought to declare that there was a state of emergency when in fact there was not, the court would be the effective control, if it were needed. I do not think that it would be needed, but whether or not that is the case, it does not have to be built into statute because the supervisory jurisdiction already exists.

That is appropriate. In an emergency situation which warranted immediate steps to be taken in the public interest, the Secretary of State would have full powers to make the order. But he could not do so if Parliament were not sitting, which really would dish the whole object of the exercise.

Lord Evans of Temple Guiting: The amendment requires orders made under Clause 1(1) to be approved by resolution of both Houses. As currently drafted, the Bill provides that orders made under Clause 1(1)(a)—that is, in respect of conditions of service—should be subject to the negative resolution procedure, as anticipated by the noble Baroness, Lady Hanham. Orders made under Clause 1(1)(b)—those containing directions to fire authorities—are exercisable by statutory instrument but not subject to the negative resolution procedure.

I should like to draw the attention of the Committee to the 21st report of the Select Committee on Delegated Powers and Regulatory Reform, published on 11th June last, which considered the delegated powers contained in this Bill. As Members of the Committee will know, the committee considers evidence on whether delegated powers proposed in Bills are appropriate, along with the degree of parliamentary control over the exercise of each power. The committee's 21st report concluded that there was nothing in this Bill to which it wished to draw the attention of the House.

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Turning to the point raised by the noble Lord, Lord Campbell of Alloway, on parliamentary sittings and crises arising, it is absolutely right that if Parliament is not sitting, nothing can be done. However, it would depend on how a crisis was defined. We could all imagine a crisis where Parliament would be recalled. At present, if a problem arises which needs to be resolved by both Houses, that can be done only when both Houses are sitting.

Baroness Hanham: I thank the Minister for that reply, and my noble friend for his intervention. I have many concerns about this Bill, but one important concern is that it will give the Secretary of State almost unprecedented powers to intervene in a potentially serious situation. That serious situation is that the negotiations currently under way are not concluded in a manner satisfactory to the Secretary of State. If that were to happen then it seems to me that it would be more of a problem for Parliament as well as the Secretary of State than it would be for the Secretary of State alone.

Indeed, as my noble friend pointed out, it would be an emergency situation, but it would also be an enormously difficult circumstance and really not one conducive to one swipe of the pen on the part of the Secretary of State. We feel that it would require more than that; it would need the authority and backing of the House. Further, that would depend on whether the Secretary of State was seeking to impose certain terms and conditions of service, a pay settlement or whether he was seeking to instruct local authorities on getting rid of or amalgamating fire stations.

Under the situation in which we find ourselves—that is, the situation which has brought this Bill before us because the Government are uncomfortable and unsure of how to proceed in what has been a situation of defiance—Parliament would offer a very necessary process of scrutiny of proposals in order to help the Secretary of State reach any final decisions.

While I hear the reply from the Minister, given the terms in which the Bill is couched, I am not convinced by it. However, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Wedderburn of Charlton moved Amendment No. 31:


    Page 2, line 26, at end insert—


"(10) No action shall be brought in any court to enforce the duty of a fire authority under subsection (9) except by the Secretary of State by way of an application for enforcement of the duty."

The noble Lord said: In a sense, this amendment opens a new area of debate in our Committee. The amendment appears on its own because it deals with an issue separate from the other amendments. A grouping originally proposed by the Minister's department threw this amendment, along with some 12 other varied proposals, into a grouping which did not address any of the same matters. So in order to have a meaningful debate, my noble friends and I exercised our normal rights as set out on page 110 of the

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Companion to remove our amendments from the gigantic conglomerate list in order to debate them in a manner which would be meaningful in your Lordships' Grand Committee.

I must refer to a certain matter, and I shall explain why. We were later accused of improperly changing the rules by altering the draft groupings at quarter past 12. I do not know where that time came from. In fact, we changed the groupings before 12 o'clock, which was the time that had been agreed with officials. Moreover, we were accused of wrongfully creating anarchy in the procedure, simply by doing what is normally done with regard to the grouping of amendments.

There has been no apology for or comment on those remarks as recorded in Hansard at col. GC 286. I mention it only because it is relevant: we have received no intimation of an apology whatever either for that or, indeed, for a number of other things.

Several of the amendments to which we now turn try to deal with matters on which the Bill is largely silent. Amendment No. 31 is one such amendment. The silences in the Bill and its interaction with the common law make it a Bill of enormous complexity. I shall submit that to the Committee, especially also with regard to Amendment No. 34.

Overall, the issues include the following: the nature of the duties under the Bill; who can enforce them against whom—Amendment No. 31 deals with one aspect of that; the duties of fire authorities and the duties of fire brigade members; the Secretary of State's powers in international law to effect those; and, in domestic law, the impact of non-compliance or contravention of the orders or directions upon the legality of the acts of those responsible for contravening them or inducing their contravention.

The Bill's silence on some of those aspects throws doubt on the legal validity of industrial action, affecting the implementation of orders under the Bill. The Minister has already made many references to the use of powers in the Bill in the event of a strike and also to the legal position of third parties which are relevant and of individual rights for fire-fighters which may come before the courts in respect of the provisions to which the powers in the Bill may relate.

Perhaps I may say clearly, because it is not my job to guess, that I do not know whether the silences which create the complexity and the problems are intentional or mistaken. That is not for us to say. Our amendments seek only to avoid the making of bad or mysteriously uncertain law, which the courts will have to interpret, and to repair the minimum of those deficiencies. In some cases, the amendments are alternatives. However, if at least a few of them were accepted, including this one, even in spirit, the Committee would be relieved from what would necessarily be lengthy explanations of later amendments. I make no apology for that because this debate involves very difficult areas of common and statutory law.

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Perhaps I may explain briefly what underlies Amendment No. 31. Persons placed under duties by statute and third parties—whether employers or trades unions—are entitled to a full examination by Parliament, under fair procedures, of their possible legal liabilities and an examination of who will enforce the duties and how.

Certain rights are contained in the Bill and certain rights and duties may be implied in the Bill. No right is stronger than its remedy. If a citizen, a fire authority or the Secretary of State has certain rights, but it is not made clear how those rights are enforced and what the sanctions are, then the courts face a very difficult problem. Amendment No. 31 addresses the first of those issues.

The first silence is: what is the position of parties and third parties faced with an order? Clause 1(9) at least sets out one point. It is virtually the only place where guidance is given on these matters. It states:


    "It shall be the duty of a fire authority to comply with a direction contained in an order under this section".

What happens if it does not? The Bill does not tell us.

I must add at once that I do not say that the Bill is wholly exceptional in that respect. Surprisingly perhaps, it is not uncommon or totally unknown for a statute to impose a duty and to be unclear or even silent about enforcement and the remedies and sanctions, if any, for its contravention. The learned editor of a leading textbook, Winfield and Jolowicz on Torts—to some extent, this is all about torts—states with some scholarly pith:


    "Certainly it should not be assumed that where a statute is silent this is because the promoters have not adverted to the point—much more likely that it would be politically inconvenient to attempt to answer the question one way or another".

When that happens, it is then for the courts to sort it out as a matter of law. They must ask what is Parliament's intention, which is not quite the same as asking what is the Minister's intention. It is the responsibility of every participant in this Committee to formulate in his mind what he thinks is the parliamentary intention in the Bill. Is it Parliament's intention that a Minister can sue the non-compliant person or fire authority? Can a third party sue them for an injunction for damages in civil proceedings in tort? If so, under what circumstances and for what remedy?

There will not, of course—as people have sometimes thought—be any criminal sanction. That is clear. Parliament has not specified a criminal liability, for example, on a fire authority that does not totally comply with a direction under Clause 1(9). But can a civil action lie? How do the courts judge that intention of Parliament? Lord Denning, when Master of the Rolls, once said that in such a case Parliament,


    "has left the courts with a guess work puzzle. The line between the pro-cases and the contra cases is so blurred and ill-defined that you might as well toss a coin".

That was in 1978. Legislation has not totally improved in that respect since then. The Bill is a large example, which will keep people who write on these matters and the courts occupied for a long time.

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If there is to be enforcement by civil action, there must be proof of a breach; there must be proof of a duty owed to the claimant or plaintive, whoever that may be; and there must be proof of damage caused by the type which the statue envisages. I see that that causes some amusement for some noble Lords. I am pleased about that. Perhaps I may just finish that particular sentence. This has very curious results. In a famous case in which Parliament said that machines must be securely fenced, the courts held that a piece that flew off and hit the worker was not something for which he could sue because the object of the Act was,


    "to keep the worker out, not to keep the machine or its product in".

I cite that as an example of the tremendous difficulty that the courts have when the Act is silent. I give way.


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