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Lord Wedderburn of Charlton moved Amendment No. 32:



"(11) No order shall be made under this Act which could conflict with the terms of the European Social Charter 1961, or of Convention 151 of 1978 of the International Labour Organisation.

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(12) In his proposals to that body, the Secretary of State shall notify the negotiating body mentioned in subsection (3) of the grounds on which it appears to him that his order will not conflict with the terms of the instruments falling within subsection (11)."

The noble Lord said: In moving Amendment No. 32 I shall speak also to Amendment No. 38, which addresses a different aspect of the same matter. Amendment No. 32 states that the Bill should provide that no order made should conflict with the terms of international instruments which have been ratified by the United Kingdom. The two that are most relevant are the European Social Charter 1061 and the ILO Convention No. 151. There are other international instruments, but it is generally agreed that these two are the most relevant to the Bill.

They relate to the need to find resolutions to disputes on relevant matters by negotiation in collective bargaining, as well as all the other matters to which reference has previously been made in ILO Convention No. 151. However, it is important to note that the Secretary of State, when he consults a negotiating body under the terms of Clause 1(3)—which we understand at the moment is to be the National Joint Council—must explain why the order does not conflict with the terms of the instruments falling within that compass.

Of course, in some cases he can say simply that it is of no relevance. If he says that, it will be enough. But, as your Lordships' Joint Committee on Human Rights pointed out, there will be cases where a question will arise as to the width of the order that could and might be made which would conflict with the provisions in those two international instruments. In those cases, which may well be common, under our provision the Secretary of State would be required to explain the position. That is broadly similar to the circumstance when a Minister certifies that the Bill he is putting forward does not breach the European Convention on Human rights. It requires a little more in the points of reference as to why that is so, but it is broadly in the same form. If we have the wording wrong, then naturally we would want it to be adjusted.

The reason it is so difficult sometimes for lawmakers in this country to adopt any such reference to the international instruments is that there is a difference here, as against the national jurisdictions in western Europe. In those jurisdictions, such instruments as the European Social Charter and even, in many, the ILO conventions could be referred to and relied on in court as primary sources. Here, that is not so easy to do. They are quotable, but their binding impact directly in the courts in individual litigation is not so easy to enforce.

The report by the Joint Committee on Human Rights raises the question and says that an order under the Bill could have the effect of falling outside those two international instruments. I interpose "could have the effect". No doubt the Secretary of State will do his best to avoid that. If he avoids that and someone suggests that he has failed, perhaps he should explain why that is wrong, as the amendment suggests.

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In other words, Amendment No. 32 takes international law seriously. It would put it in the Bill, acknowledge it in the Bill, and suggest that the Secretary of State has the obligation to come forward with explanations where someone challenges his understanding of what has happened.

Amendment No. 38 merely states that the Secretary of State is to pay regard to similar conventions of the ILO. The amendment is defective, in that it does not mention the European Social Charter, which it should do. Under the amendment, he should pay regard to similar international instruments ratified by the United Kingdom when, under the relevant subsections, he decides the appropriate arrangements on a negotiating body which he is going to consult. It is, in a sense, only a procedural parallel for the kind of considerations that fall under Amendment No. 32. I beg to move.

6.15 p.m.

Lord McCarthy: I support the amendment. I suggest to the Government that it is inconceivable that they would want to invoke the power in the Bill without explaining that. Presumably, it would be debated in the House and in the country. Presumably, especially the first time it was used, the Trades Union Congress would want to make its case, as well as the union. One of the central arguments would be that those opposed to the case would quote extensively from the Joint Committee on Human Rights and say, "It said that although the power was not intrinsically against either of those international conventions, it could be used in a way that was in breach of those conventions, and that the Secretary of State at the time had, in effect, promised not to do it and could guarantee that he would not do it".

All those matters would have to have been gone into. The Government had better make a very good case establishing that they are not in breach of either of those conventions and they had better be ready to explain it. Adding the amendment to the Bill would be a sensible way of formalising the process. The Government have nothing to lose by agreeing to it, and I hope that they will.

Baroness Turner of Camden: I want to add to what my noble friends have said about the two amendments. The Minister referred earlier to negotiating machinery and said that that was not provided for or dealt with in the Bill. In fact, under Clause 2(2)(b), the Secretary of State is required to deal with a negotiating body, and it sets out what constitutes a negotiating body. It states that a negotiating body,


    "is constituted in accordance with what appear to the Secretary of State to be appropriate arrangements for the negotiation of the conditions of service of fire brigade members".

It would be useful to have the addition that is provided for in Amendment No. 38, which spells out exactly

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what would be "appropriate arrangements". They are, of course, the procedures that are set out in some detail in Convention No. 151, which states:


    "Measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilisation of machinery for negotiation of terms and conditions of employment between the public authorities concerned and public employees' organisations or of such other methods as will allow representatives of public employees to participate in the determination of these matters".

That explains very clearly what "appropriate machinery" is and it therefore seems appropriate that the arrangement in Amendment No. 38 should be added to the Bill.

Lord Rooker: I shall deal with the amendments in reverse order: Amendment No. 38 first and then Amendment No. 32. I hope to make the case that neither is necessary without frightening my noble friends even more than they are already, or making them more fearful of what the Government plan.

Amendment No. 38 proposes that, in determining what appear to him to be appropriate arrangements for the National Joint Council, the Secretary of State must pay regard to the ILO conventions ratified by the UK. Again, I must repeat—I know that this is annoying to my noble friends, but it is true—that the Bill does not allow the Secretary of State to determine the NJC's arrangements. The Bill defines "negotiating body", and one of the parts of the definition indicates that the body must be constituted in accordance with what appear to the Secretary of State to be appropriate arrangements for the negotiation of conditions of service of fire brigade members.

The purpose of this part of the definition is so that the Secretary of State can be sure that the body is properly constituted and thus properly representative of both sides, with agreed procedures in place. In effect, for practical purposes, that involves the status quo. The Government's view is that, while we have made clear in the White Paper that we think that the NJC needs to be reformed, the current NJC meets the definition in the Bill, which is what we are debating, and that is the body that would be consulted by the Secretary of State. Therefore we do not think that there is any further requirement about what the Secretary of State must consider.

One could imagine a circumstance in which there was, let us say, a break away—I do not want to add grist to the mill—and part of the employers or a part of the unions set up something else. I am not saying that that is even remotely possible in these circumstances. The fact is that paragraphs (a) and (b) would avoid that. In other words, we are talking about the status quo. We are satisfied with the present arrangement.

I turn now to Amendment No. 32. It would mean that no order or direction could be made which could conflict with the European Social Charter or with Convention No. 151 of the International Labour Organisation, and that when consulting the negotiating body about his proposals, the Secretary of State would have to make it clear how his proposals

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did not conflict with those instruments. We did of course debate that point at Second Reading. We gave assurances that the Government would exercise the powers in the Bill or the powers that the Bill would confer in respect of conditions of service if we considered it necessary to do so in order to maintain or enhance public safety, if negotiations had failed to produce an agreement. For example, if the detailed negotiations that I have previously mentioned were to fail to produce agreement, we think it would be appropriate to consider using the powers.

We would certainly not expect the orders to conflict with the two instruments mentioned in the amendment. I am absolutely unequivocal about that, and I am sure that the Secretary of State would make that clear at the time if we were to go down that road. However, we maintain that we could not stand by if there were further breakdowns that either threatened to lead to a resumption of industrial action or delayed the changes to the Fire Service which we believe will deliver improved community safety.

As a comfort factor, I should draw attention to the fact that the powers in the Bill are time-limited to two years. So the issue will not be around for ever. In case anyone wants to make a fist of it—no one has done so in this Committee, but I do not want to be accused of creating problems by omission—the noble Lord, Lord Wedderburn, raised the point about Ministers giving their view on compatibility with the human rights convention. Noble Lords may notice that although the declaration I signed is not in the printed version of the Bill, the fact that I did indeed sign such a declaration on 4th June, the day the Bill was introduced, is referred to in the notes on clauses.

I offer those reassurances on the two points and I hope that my noble friends will accept them.


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