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Lord McCarthy: My Lords, I may not be allowed to say this, and I say it very reluctantly, but the noble Lord is in danger of having "emergency" on the brain. I am not necessarily talking about an emergency. I am talking about what the Government propose to do to the fire service.

The noble Lord intervenes at a very convenient moment. I was told something by the noble Lord, Lord Rooker, which is in some ways similar to what the noble Lord, Lord Campbell of Alloway, has just said. He said two things. First, he said that he could not answer my concerns because there was no power in the Bill to impose these things by the force of law, so we could not discuss it. I cannot see why we cannot discuss matters that cannot be imposed by the force of law, but never mind. That is what he said.

I am quite prepared to admit that we have made mistakes in this debate. Unfortunately, we fell into a debate about whether the things that I am complaining about, which are in the White Paper, could or could not be introduced through the powers in the Bill. Quite frankly, I do not know the answer to that. In a sense,

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it is not my central concern. My central concern is that this is being advanced as government policy and that there are many ways, without using this Bill, to enforce such things. The fact that the Government announce policies of this kind can dominate the negotiation process.

Secondly, the noble Lord, Lord Rooker, said that, rather than comment on the violation of conventions and so on, he would cite ACAS. Well, I have said what I think about ACAS. What will happen in the fire service—and I know that it is going on now—is negotiations on the future stages of the 2003 agreement. It is possible—in fact, it is likely—that by 7th November another 7 per cent increase will be linked to the new role structure. If that role structure is not agreed, there will not be a 7 per cent increase. By July 2004, another 4.2 per cent will be linked to further changes in industrial behaviour, and so on. All these sums of money are contingent on the verification by the Audit Commission of certain savings.

Without talking about whether the Secretary of State could impose the new structure through this Bill or would have to wait for a new Bill, he could, at any point, say that he was not satisfied that sufficient advance had been made. He could say that he was not satisfied that he could pay 11.2 per cent, that the figure could not be higher than 7 per cent, and he would produce an order based on this legislation. At that moment, what is in the White Paper would affect the Bill.

The Government ought to tell us what they intend. Do they intend, in the current negotiations, to threaten the unions with the possibility that if they do not agree, they will get a big, big Bill which will force these monstrous things on them? Or do they intend as the noble Lord, Lord Rooker, said at one stage, to keep them in the background and not mention them although we all know that they are there? That seems to me a pretty daft way of carrying on.

Once the union reads the White Paper and knows what is in the Government's mind, there cannot be what any reasonable man would call negotiations about the future of the fire service. The Government must begin by going back—reversing, getting out their reverse gear, coming out of the garage—and changing their policy. I beg to move.

Lord Wedderburn of Charlton: My Lords, I support my noble friend. Everything he said, it would be difficult to deny. In view of some of the glances of the 10 people in the Chamber, I wish to say that I am sorry that we are forced to rise on such matters at this hour. No doubt the authorities will note that it is now 20 minutes to 10 o'clock and we are debating a matter of grave importance in international and domestic law.

I wish to make three main points. Knowing that it is the Government's policy to take control of the composition, chairmanship and procedures of the National Joint Council—or national joint councils, as they will impose—we say in the amendment that that is not something that they should take into account in

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making the orders. The burden of proof on us, therefore, is not to prove that the orders could impose those new requirements.

The noble Lord, Lord Rooker, in his reply in Grand Committee made a bad point in saying that it would be impossible for an order on terms and conditions of service to make provisions that affected the procedures and composition of the National Joint Council. He said that that was because it was no concern of the contract of employment of a firefighter what happened at the level of the National Joint Council. He asked to be shown where it was written in the contract of employment, overlooking the rather elementary point that a major part of most contracts of employment today consists of terms implied from other documents and procedures. It may be works rules, collective arrangements or collective agreements, which take their legal effect by incorporation, often impliedly, into the employment contract. If that were not so, workers would not have dozens of rights that are implied, and indeed dozens of obligations that are also implied.

The courts have recognised the extensive rights of workers to have the machinery of such joint negotiating bodies considered as part of their contract of employment obligations and rights. I even dare to quote two authorities on the point. They were not quoted in Grand Committee. Therefore, I am obliged to quote them, so that they be on the record, which is all that we shall get tonight.

Lord Campbell of Alloway: My Lords—

Lord Wedderburn of Charlton: My Lords, I would like to finish my point before I give way. The first authority is City and Hackney Health Authority v NUPE and Craig in 1985, where rights stemming from a Whitley Council for ancillary staff and their procedures were incorporated impliedly into the contract of employment of a worker. I will refrain from quoting, as I must, what Lord Justice Oliver says until after the noble Lord has insisted on intervening.

Lord Campbell of Alloway: My Lords, I beg to move that the Question be now put. It is a fallen Motion.

Lord Wedderburn of Charlton: My Lords, that is a debatable Motion, and I will debate it by continuing with my advocation of the amendment, if that is permitted.

The Deputy Speaker: My Lords, does the noble Lord wish to put the Question? I understand that it is a serious Motion to put before the House.

Lord Campbell of Alloway: My Lords, we have had long enough on this debate. The matters have been considered on previous occasions. We are drifting into an attack on government policy. I am wholly delighted

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to attack it on other occasions, but at this hour of night and in this context, no. I beg to move that the Question be now put.

The Deputy Speaker: My Lords, I am instructed by the order of the House to say that the Motion that the Question be now put is considered to be a most exceptional procedure, and that the House will not accept it, save in circumstances in which it is felt to be the only means of ensuring the proper conduct of the Business of the House. Further, if a Member who seeks to move it persists in his attentions, the practice of the House is that the Question on the Motion is put without debate.

Lord Wedderburn of Charlton: My Lords, I wish to debate the Motion that the noble Lord, Lord Campbell of Alloway, has put, but by giving reason why there are new matters that the House and the Grand Committee before it has not yet heard. Those new matters are relevant to the rights of thousands of workers and, indeed, fire authority employers, and therefore it is quite irresponsible for the House to legislate without hearing what they are. If the noble Lord, Lord Campbell of Alloway, does not want to hear them, that is his private concern, but the concern of a legislature is to consider the matters that are relevant. I have two judicial authorities which do not support what the noble Lord, Lord Rooker, said in Grand Committee. I believe that my noble friend wants to interrupt me. If so, I am happy to be interrupted.

9.45 p.m.

Lord Grocott: My Lords, I want to say only that we are still discussing the amendment. I get the sense of the House that perhaps we can do so without it going on at inordinate length.

Lord Wedderburn of Charlton: My Lords, the length of the amendment is relevant to the importance of the matters under debate. My noble friend the Chief Whip is responsible for when the business comes on in your Lordships' House. If he had put us on at five o'clock, we would have had plenty of time. And we have plenty of time for this debate—the night is young.

The second authority is Lee v GEC Plessy in 1993 where a group of workers was held to have employment rights about severance payments determined according to the correct procedures and arrangements in the collective agreements negotiated by their union in a sectoral joint council. I accept that there are limits to what can be taken into account as part of the employment contract, but it is wrong to suggest that the orders make under Clause 1(1)(a) of this Bill could not have provisions which affect the composition and procedures of the National Joint Council in so far as it is part of the entitlements of fire fighters, workers, employees in the industry. Therefore, that major plank in the argument of the noble Lord, Lord Rooker, put in Grand Committee is, with the greatest respect in my submission, wrong.

The second point is that my noble friend Lord McCarthy was absolutely right in stating that under Conventions 87 and 151 of the ILO and under the

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European Social Charter, the rights of employees to nominate their own representatives without something equivalent to Mussolini's Carta del Lavoro being imposed on the structure of their joint procedures is plainly part of international law.

I must say not only to the Government but to the Opposition that the exposure in Grand Committee that the Opposition, too, were not disposed to argue vigorously for the defence of these international legal documents, to which Britain is a party, was a matter of great surprise to me and deserves a little more elaboration by a party which now is beginning to set its policies at its conference.

Thirdly, it must be restated—as was stated in Grand Committee—that your Lordships' Joint Committee on Human Rights made it quite clear that because the powers to make orders are so widely drawn under the Bill there is the possibility that orders under the Bill will infringe both the ILO Convention 151, Article 8, and the European Social Charter, Article 6. It would not be thought right for me to read out the passages from the committee's report because, contrary to our choice, the matter has been brought on when everyone is dozing and swapping jokes. But firefighters are not swapping jokes about this. Nor are other workers who fear that such an approach to public services is in the thinking of those who are putting forward the powers in the Bill.

Therefore, the amendment provides, first, that in making orders the Secretary of State should not,


    "take account of composition, membership, representation, chairmanship or procedure",

of national joint councils; and, secondly, that he,


    "shall have regard to the relevant Conventions",

of the ILO, the Social Charter and other instruments of the United Nations that are well-known—and well-known even in government. If a member of the negotiating body believes that there is a problem in regard to our international legal obligations, he can call upon him to explain why an apparent breach of the international conventions and documents appears to have been made in the order.

What is unreasonable about that? The Secretary of State must consider international law; he must refrain from pressing his policy on the composition of the National Joint Council through use of the orders; and he must declare and explain any apparent breach of the international legal position. Why is that so unreasonable? But we know—it has been made clear tonight—that the Government are simply taking a position, having no reverse gear, and that they will be obdurate in the face of any amendment. One could table an amendment saying that the Benches in the Chamber were deep red and it seems that the Government would oppose it tonight.

If the Government do not have arguments better than those put forward in Grand Committee, they should accept the spirit of the amendment, accept that this type of provision should be placed on the face of

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the Bill, and make it clear that the fears of those who believe that orders may have some of the effects that have been mentioned are not justified.


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