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Lord Rooker: My Lords, let us get this absolutely clear: I shall say this once and only once to my noble friend and anyone else. Many years ago I joined the course on industrial relations and labour law at Warwick University under the tutelage of Allan Flanders and Hugh Clegg two days after I had been selected as a parliamentary candidate. They discovered that and said, "We hope you are not going to Parliament to try to solve industrial relations disputes on the Floor of the House of Commons". It can be taken as axiomatic that I am not discussing anything relating to current negotiations on the Floor of this House now or later.

Lord Campbell of Alloway: My Lords, I heartily endorse what has just been said. I have never discussed the merits of any industrial dispute on the Floor of the House. Having listened to what has been said today, one must be realistic. One must realise the hour—the time—and the likelihood of any Division taking a successful route in view of what has been said tonight. I have no support. It would therefore be ridiculous and a waste of your Lordships' time for me to do other than to ask leave to withdraw the amendment.

However, as the noble Lord, Lord Rooker, said, I do not like the Bill. I opposed it at Second Reading as unamendable. I sought to amend it because when I came here I was taught if possible not to oppose a

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government Bill but to seek to amend it. I have failed. I fear that I shall move Amendment No. 5 to oppose it. If I go down, I go down. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 2 not moved.]

Lord Wedderburn of Charlton moved Amendment No. 3:


    Page 2, line 24, at end insert—


"(7A) For the avoidance of doubt it is declared that an act done in contemplation or furtherance of a trade dispute which is otherwise not actionable in tort by reason of Part V of the Trade Union and Labour Relations (Consolidation) Act 1992 (c. 52), shall not be actionable in tort on the ground only—
(a) that it constitutes a contravention of, or non-compliance with, a statutory duty imposed by an order made under this Act, or
(b) that it constitutes an inducement to commit, or agreement or combination to commit, or threatens to commit or induce, any such contravention or non-compliance.
(7B) In subsection (7A) "an act" includes a deliberate failure to act."

The noble Lord said: My Lords, it is the fate of this Bill, with its sunset clause, always to come on in your Lordships' House well after sunset. The amateurish and deliberate arrangement of business tonight has meant that this poorly attended but excited House must consider the rights of 50,000 workers as the hour goes on, from 10 o'clock until whenever we end. I have great sympathy with the point made by the noble Lord, Lord Campbell of Alloway, that whoever is responsible for this and wherever they are—we call them "the usual channels"—will understand that they have made this House a laughing stock. That is especially so when they react in such a bellicose manner to any cough or a hesitation by anyone around the House to believe that they could not possibly be wrong. I refer to the arrogance of the Government in their presentation of the Bill. I have never said that about Ministers in the past, as most are neither arrogant nor bellicose. This Bill has been made an exception.

In the light of the new developments that have occurred since Report, it is necessary that I move the amendment, without any repetition in detail of what has gone before on the Bill, in a proper manner. I shall come to the new developments later.

I appreciate that it is a very good principle not to try to comment on the details of ongoing industrial negotiations. Indeed, I was teaching the subject when the noble Lord, who referred to other experts on the subject, was in his student days. However, those who refer in justification of their position to the delicate state of negotiations have no locus standi to rave about the inability to say anything further. When the Secretary of State makes a considered statement on the radio, I take it very seriously.

We wonder why the authorities brought the Bill forward by a week to be debated tonight. With those remarks, I beg to move Amendment No. 3. I still hope that it will be acceptable to the Government, as it

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stands for the avoidance of a doubt that we have established. If it were accepted, we would not move Amendment No. 4. This is the last moment when the right to strike of fire-fighters can be dealt with by this House and preserved by clear words in the Bill to cure the manifest doubt that has arisen in the mind of everybody other than the Government and their advisers—to whom I shall come—who has considered the law on the subject.

The Government must discharge the burden of proof that there is no doubt whatever. The reason for that is very clear: if you apply to the High Court and prove an arguable case, the doubt operates against the defendant. An arguable case is enough to secure a labour injunction.

There is no doubt about the Official Opposition's position. I do not blame the noble Baroness for making it clear that they are in the process of working out their policies. She made it clear on Report and in Grand Committee that the Opposition's policy is to take away from fire-fighters the right to strike, or, as I put it in a previous debate, that fire-fighters should be militarised.

Our Government say that that is not their intention, and we have never challenged that statement. Our challenge has been that their Bill leaves that intention in doubt on the statute book. Indeed, it is in tatters, because the Bill does not effectuate that intention. It will not be difficult for those who object to industrial action to obtain injunctions from the courts, because the burden that they have to discharge is to present an arguable case—after the decision in your Lordships Appellate Committee in American Cyanamid v Ethicon [1975] AC 396. Lord Diplock made that perfectly clear:


    "The claimants must show . . . a serious issue to be tried",

and then the court will consider the balance of convenience.

If we did not take this opportunity, my noble friends and I who tabled this amendment would not uphold the integrity of our arguments in previous debates in which we have been quite consistent on this matter. We have pressed the Government at all stages of this unhappy Bill that we must have clarity on the face of the Bill—not merely in terms of the intentions of Ministers, but in the law that we are making, that the normal rules of industrial action apply to firefighters. For the Armed Forces and the police, international law under the ILO conventions, the European Social Charter and sundry other instruments permit an abrogation. That law does not permit the abrogation of the rights of firefighters unless we militarise them, which has been done in some European countries.

Reasonable persons outside this House are asking, "Why is there any doubt? Why not cure it by some simple words, if that is what you intend?". I say clearly to noble Lords that it is now well known—indeed, it has been in the press and I vouch for this—that the TUC has joined in asking for an amendment from the Government to remove the possible threat to the right to strike in this Bill. What will the Government say to the TUC?

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It is all very simple, even at this stage of a darkening night. Persons with an arguable case who suffer damage can obtain injunctions against industrial action unless it is protected. Even if there has been a ballot or a trade dispute, if it falls outside protection, they can get the injunction. The essential point is this—and I will say this very slowly—a breach induced by union action with a ballot in the trade dispute is a breach of a contractual duty, including one created by the Bill or an order under the Bill and the right to strike is retained. If the union—with a ballot in a trade dispute—induces a breach of statutory duty, such as imposed by an order under this Bill, the right to strike is not protected. Of course, in a particular case when an injunction is issued on balance of convenience, that has to be taken into account, but that is the essential crux of the case. Everybody seems to have understood that except the Government. Indeed, after certain articles in the Guardian, I understand that they talk of little else in Barnsley than that essential distinction. It is known to workers and to firefighters, and if the Government want to throw the embers of a bomb into negotiations, they will pass this Bill without amendment. Everybody knows that it is a possible legal threat. Everybody knows that it can be cured by 50 words. Why not accept that?

This is not my law: this is the law pronounced in the Court of Appeal judgment in the case of Meade v Haringey Council [1979]. Noble Lords who have followed the debates will have seen the case discussed at previous stages. They will know that, in that case, a local authority closed schools, in breach of its statutory duties, at the demand of a union in an industrial dispute about wages. On the position of the union, Lord Justice Eveleigh said, at page 508 of the Industrial Cases Reports, that the union,


    "may, in proper circumstances, induce others to break a contract in furtherance of a trade dispute, but they are not entitled with impunity to order or solicit a breach of statutory duty".

On page 505, Lord Denning also gave that as his view. He said that the law gave the union,


    "immunity if they induce a person to break a contract. It gives them no immunity if they induce a local authority to break a statutory duty".

He went on to say that to do so, in agreement with the union, would involve "an actionable conspiracy".

I said that there had been new developments. Your Lordships should know of them; indeed, we should have had a full debate on them. There has been a remarkable development. On Friday afternoon, in the middle of the postal strike, I was sent a fax by my right honourable friend Nick Raynsford, who had invited me and my noble friends Lord McCarthy and Lady Turner of Camden to a meeting that was somewhat frustrating, as we did not get near the central point of the problem. He sent me a fax of 10 pages of legal advice. We had been asking for it for four months. Since June, we have asked for a reasoned legal case showing what was wrong with saying, "Meade's case applies. It's Court of Appeal. Why can't you say that that doesn't operate here?"

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I read the 10 pages. They were new, and I thought that they would be placed in the Library. I was told that it would be sent to a wider audience and would, therefore, say things that I knew about but which had to be explained to a wider audience. Perhaps, some noble Lords have had it. I thought, "I had better get down to this", and, to my wife's consternation, I spent most of the weekend trying to see what I thought of it and putting it down on paper. I have placed a copy in the Library. I almost feel like saying what my former right honourable friend Michael Foot once said in the middle of a debate in which he referred to a document: "Hands up who has read it. Hands up who thinks there's something wrong with it. If so, what is it?"

I found that the note of legal argument was defective. I could give your Lordships 11 examples of its defective legal character. I am sorry to say that. Something about legal advice seemed to bother the Minister; I am not sure what it was. I shall give one example from the 11 cases of legal error. I do not usually say this. In an academic article, I would be much kinder; I would say that it was possible to disagree and give the reasons. But then, an academic readership would read it carefully.

I must speak bluntly. I shall take one example: the note tells Ministers that they need take little heed of the Meade judgment in 1979. The first reason that it gives is that only Lord Denning expressed the point of view that I cited. Those who prepared the note could not even read on three pages and see that Lord Justice Eveleigh agreed and that other judges had supported it anyway. So, that is wrong. It then says that Lord Denning had expressed it—if I dare repeat their legal Latin in the presence of the Minister—as an obiter dictum, meaning that it was just a throwaway remark. But it was central to his reasoning. Thirdly, it says that the finding was criticised by a Law Lord in 1995. It was not. The passage in the judgment of 1995 to which it refers—I am happy to read it out, if your Lordships want it—was a criticism of a different passage, not of that passage.

If that is the legal basis on which Ministers are going to say, "We don't have to bother with Meade's case. We don't have to bother with the distinction between inducing a breach of contract and inducing a breach of statutory duty", your Lordships are entitled as a legislature to look at the matter de novo and ask what is going on. In all fairness, I ask any noble Lord who is going to rely on the legal memorandum sent by my right honourable friend Mr Raynsford to look before doing so at my memorandum in the Library and not vote before comparing the two.

All we are seeking is a clear statement in the Bill—there is no such statement at present—saying that it does what Ministers say they want to do. For example, if a ministerial order under Clause 1(1)(A), which states,


    "modify the conditions of service",

was interpreted as modification of a contractual term—industrial action—opposing that change in response to such an order would be protected. But the Bill does not state that such an order operates in that

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way. If Ministers wish me to summarise, I would be happy to read out passages from previous debates. I know that some noble Lords cannot bear the length of argument on the matter, but this is dealing with the rights of workers.


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