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Lord Rooker: My Lords, I shall seek to do justice to the noble Lord's group of amendments. I am not seeking to jump the gun, but I may touch on Amendment No. 5, to which he referred and which is linked with Amendment No. 8, although that amendment is the property of the Conservative Front Bench.

This group is largely concerned with placing conditions on the Secretary of State's power to make orders under the Bill. Noble Lords will be aware that the purpose of the powers is that in the event of a further dispute the Secretary of State can take action to remove the cause of the argument. If it becomes necessary for the Secretary of State to use the powers—and we very much hope that it will not—he must be able to intervene decisively and without undue delay so that the argument does not drag on, as it did in the past 12 months. Placing preconditions on the powers, however well intentioned, would make that more difficult and could even call into question the Secretary of State's ability to exercise the powers, as I shall explain.

Amendments Nos. 2 and 4 are in part concerned with restricting the use of Clause 1(1) to states of emergency. They would allow the Secretary of State to use his powers under that subsection in a state of emergency, but the recent fire service pay dispute was not deemed a state of emergency, even when the country was at war. Local disputes that may stem from the dispute are certainly unlikely to constitute a state of emergency.

The Emergency Powers Acts 1920 and 1964 allow the Queen to issue a proclamation of a state of emergency if it appears to Her Majesty that there have occurred, or are about to occur, events of such a nature,


Lord Wedderburn of Charlton: My Lords, will my noble friend read the rest of the Act, which is only a very short paragraph?

Lord Rooker: My Lords, no. I am sticking to the notes that I have.

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We do not want a state of emergency to exist at all. If it were to do so, for example, as the result of a chemical, biological, radiological or nuclear attack, I would hope and expect firefighters to act responsibly regardless of whether they were engaged in an industrial dispute and to protect the public. I know from his remarks on Second Reading that the noble Lord, Lord Campbell of Alloway, shares that view. Noble Lords will recall that there were numerous occasions during the dispute when firefighters left their picket lines to attend emergency calls when lives were in danger. We would expect nothing less, and we pay tribute to the work done in that respect.

The noble Lord, Lord Campbell of Alloway, has previously indicated that he believes that powers such as those in Clause 1(1) should be exercised only in a state of emergency. During the Second Reading debate, he recalled the emergency legislation passed during the Second World War and indicated that the Bill could have been justified by the circumstances pertaining at the time of its introduction in the other place—that is, the conflict in the Gulf. Circumstances have clearly changed since the Bill's introduction in the other place, although our Armed Forces are of course still at risk.

As I said in Grand Committee, it would not be right for us to have to wait for a state of emergency before the powers in the Bill could be exercised. It would not be acceptable to the House or to those outside this place if the dispute were to flare up again, further strikes were threatened, and all that the Government could say was, "We can't sort this out because there isn't a war on". As I have explained repeatedly, this Bill is to tackle a specific circumstance, which is not a state of emergency.

With respect to collective bargaining, in relation to Amendments Nos. 4 and 6, the other conditions under which the Secretary of State may make an order under Clause 1(1)(a) are when collective bargaining has broken down and mandatory arbitration has either not been applied for or the results of the tribunal have been ignored or rejected.

The difficulty with the proposition that collective bargaining would have to have failed before the Secretary of State could exercise his powers is that it is a matter of judgment whether collective bargaining has failed. There is not necessarily one single point in a dispute that marks with absolute certainty the point at which collective bargaining can be considered to have failed. For example, it could be argued strongly that collective bargaining did not fail during the recent dispute, given that the two parties eventually reached an agreement. Most reasonable people would accept that there were a number of occasions during the long dispute when the prospect of a negotiated settlement seemed extremely remote and where the sort of decisive intervention that the Bill will allow would have been appropriate.

Amendments Nos. 6 and 4, if accepted, would theoretically provide an opportunity for the employers or the union to challenge the Secretary of State's exercise of power on the grounds that in their view

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collective bargaining had not failed. At the very least that could delay the Secretary of State's intervention with the result that a potentially damaging industrial dispute could drag on or that firefighters would not get a pay rise.

As regards the other conditions suggested in Amendments Nos. 6 and 4, namely, the issue of the award of a mandatory arbitral tribunal, that should have been ignored or rejected before the Secretary of State can use his powers. Amendment No. 6 refers to Amendment No. 7, which would provide for the establishment of an independent mandatory arbitral tribunal for the resolution of disputes concerning the conditions of service of members of the fire brigade. Disputes would be referred to the tribunal only if collective bargaining had failed. The failure of collective bargaining would be determined by the parties or ACAS. The award of the tribunal would be, as the noble Lord said, binding on all parties and the Government.

The issue of arbitration was raised by a number of noble Lords during Second Reading debate and in Grand Committee. We indicated then that the Government had some difficulty with it. That is still the case. It would go against the whole purpose of the Bill. If the two parties to negotiation cannot agree, the democratically elected Secretary of State with responsibility for the provision of an effective fire service and for the public funding of that service, should step in and make a settlement. I agree that that would require some hard decisions and those could not and should not be handed over to a third party.

The issues which caused the most difficulty in the fire dispute are those such as how the fire service should move from a prescribed national fire cover standard to a locally risk-based approach to fire cover; and what are the implications for staff, especially shift patterns? These are not necessarily issues for arbitration. Ultimately, one cannot arbitrate about policy questions such as the right basis for fire cover. One can arbitrate about some of the implications, but it is hard to see how even the best independent arbitrator would be better placed to make informed judgments than those directly involved in managing the fire service or those in government who have the policy responsibility for it. We are prepared to make the hard decisions ourselves if we have to, not just hand them over to someone else.

Amendment No. 7 also states that any award of a tribunal would be binding on the Government. That raises the question of whether the Secretary of State would still be able to discharge his powers under Clause 1(1)(a) to fix or modify conditions if this interfered with the decision of a tribunal and the award of the tribunal was binding on the government. However, as the Government are not a party in the resolution of disputes concerning the conditions of service of members of the fire brigade, it would be impossible for the award of a tribunal to be binding on them. The drafting in this respect is flawed.

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As regards Amendment No. 4, it also requires the Secretary of State, save in states of emergency, to consult before directing fire authorities in the disposal and use of their facilities and property under Clause 1(1)(b). If it became necessary for the Secretary of State to use the powers, he must be able to intervene decisively and without undue delay so that lives are not put at risk. He may need to do that in circumstances which do not amount to a state of emergency as defined in other legislation mentioned earlier, but where the public are still at risk. However well-intentioned, and I accept the good intentions on this point, placing pre-conditions on the powers would make that much more difficult.

Amendments Nos. 3 and 13 would effectively remove the provisions in subsection (3) which require the Secretary of State to submit any proposals on the conditions of service for fire brigade members to any negotiating body that appears to exist. I assume that the noble Lord wishes us to read this amendment in conjunction with Amendments Nos. 2 or 4, which makes it impossible for the Secretary of State to use these powers in subsection (1) save in a state of emergency.

I explained earlier why we cannot accept the amendment, which restricts order-making powers to a state of emergency, and, as Amendments Nos. 3 and 13 would not be desirable without this pre-condition, I regret that I cannot accept them either.

I have a final point to make about Amendment No. 5, to which the noble Lord referred. It takes a different, more direct approach. It seeks to make collective action taken at the instigation of a trade union unlawful, first, if it disrupts fire brigade services, and secondly, if it inhibits performance of an order made under the Bill.

I can only repeat what I have said on numerous occasions. We do not intend to change the general law on industrial action in relation to the fire service. Whatever the cause of any collective action, if the proper steps are taken the existing legislation will offer some protection for those taking the action. That will remain. The Government do not intend to use the Bill, which we have consistently said is limited in its purpose, to make changes to industrial relations law. With that in mind, I hope that the noble Lord will reflect on the matter and withdraw his amendment.


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