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The Earl of Onslow: My Lords, this has been a serious abuse of the procedures of the House. The Standing Orders say that the debate should be a tidying-up of provisions that have been amended by the Government. We should come to an agreement now rather than listening to hours and hours of Second Reading, Third Reading, First Reading, Committee and Report speeches all jumbled into one. I therefore move that the Question be now put.

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

Earl Attlee: My Lords, my noble friend has been quite helpful. If the noble Lord could conclude his arguments, we could get on with deciding on this amendment and move on to the next one.

Lord McCarthy: My Lords, I shall end my speech. It is not my amendment, but my noble friend has a right to reply and no doubt the Minister will want to say

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something. I just want to speak on the position of the Government. They may have heard this story; it is an old story. The position of the Government is like that of Lord Pirrie, who was the chairman of Harland and Wolff. As he stepped aboard the liner in Southampton he said, "I can't see why we want any lifeboats cluttering up the decks at all. After all, this is the 'Titanic'".

Lord Rooker: My Lords, to start with I shall share with the House some of the conclusions that I shall come to after I answer the debate; some things you need to put on record up front rather than wait for the end. I want to repeat to all noble Lords who have spoken that, on the best legal advice that the Government have received, we accept and believe that the Bill does not jeopardise or alter the protection of the firefighters or their union from immunity under the Trade Union and Labour Relations (Consolidation) Act. We have heard from no modern lawyers externally specialising in industrial relations, academic or not, giving a contrary view. In that respect, we take extra comfort from our own legal advisers.

Amendment No. 3 is a very technical legal amendment about trade union law. We have sought extensive legal advice on the matter, and are convinced that there is no need for the amendment. Like many noble Lords here today, I am not a lawyer—I am constantly reminded of that—and nor is the debate a legal seminar. However, I will try to explain my objections to the amendment in lay terms rather than legal terms, and I hope the lawyers among us will bear with me while I speak in plain English rather than academic legal jargon.

One central issue that has come from my noble friends relates to the advisers and their notes. I do not intend to quote extensively from them. If they are not in the Library now, they certainly will be tomorrow. Noble Lords could have read out the legal adviser's conclusion. After a balanced discussion of the issues, our legal adviser concluded:


    "It follows, we would argue, that the effect of a direction, whether under section 1(1)(a) or (b), could not be to reduce or remove the protection that would otherwise be available to a firefighter or to the FBU under the Trade Union and Labour Relations Act".

That could have been read out, and it is worth putting on record.

In layman's language, let us say that the Secretary of State directs a fire authority to make equipment available to a neighbouring authority. I think that I used part of the example on Report or in Committee. The union does not like the direction and calls for industrial action. The firefighters work for the fire authority and have a contract with the fire authority. So if they take industrial action, they are breaking their contractual duties. But so long as the procedural rules about balloting have been followed and the matter is a trade dispute, the union and firefighters will be protected by action by the Trade Union and Labour Relations (Consolidation) Act 1992, just like any other workers.

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However, what the union would be trying to achieve through the industrial action is a breach of the fire authority's statutory duty under the direction. So, as my noble friend Lord Wedderburn would say, following Meade v Haringey London Borough Council, a member of the public will be able to obtain an injunction against the union (one cannot obtain an injunction against the firefighters) preventing it from calling a strike because by doing so it will be inducing a breach of statutory duty. I must also note as an aside that the case was decided by Lord Denning in 1979 and the main issue was in fact whether the Education Act gave rise to statutory duties, an issue on which the Meade case has subsequently been criticised by the case of the X, the unidentified party, v Bedfordshire County Council in 1995.

Lord Wedderburn of Charlton: My Lords, as to the—

Lord Rooker: My Lords, can I just finish? I would like to be able to make a considered response and I promise that before I sit down I will give way. If I am going to be subjected to constant interruptions, I shall not be able to give a considered response to a technical legal argument. I insist, frankly, on my right to put the case.

First, one must remember that this Bill of itself does not create new statutory duties; it simply gives powers to the Secretary of State to make directions. We have repeated on numerous occasions the circumstances when the Secretary of State may do so and those powers are time limited by the sunset clause to two years.

Might any directions, if made, create statutory duties? For a Meade-type claim to succeed, one would have to show that there was a statutory duty which was actionable for damages at private law. This is not the same as the authority having a public law duty to carry out the Secretary of State's directions. A public law duty would allow a person with sufficient interest judicially to review the fire authority in the administrative courts if it had failed to carry out those directions.

But to bring an action, to obtain an injunction against a union, an individual would need to show that if the fire authority did not carry out the directions, a member of the public could sue the authority for damages. I ask the House to note that not even the fire authority's primary duty on fire fighting under Section 1 of the Fire Services Act 1947 gives rise to such a claim. There I refer to the case of Capital & Counties plc v Hampshire County Council in 1997. If a homeowner cannot make such a claim where no directions have been made under a Bill, it would seem odd that he should be able to do so if a direction is made under this Bill.

Ordinarily, a breach of statutory duty does not give rise to private law claims. Directions under the Bill will essentially be about the fire authority's administrative or operational functions for the benefit of the public at large and are therefore not amenable to family and

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private law claims. Furthermore, there would also be numerous other difficulties with such a claim; for example, how would a homeowner be able to show that the damage caused by fire to his home was directly attributable to the failure on the part of the fire authority to carry out the Secretary of State's directions? We believe that any action would therefore fall at the first fence.

Even if it were the case, a strike may not necessarily cause the authority to be in breach. It may still be able to carry out the order whether or not the workforce is available; for example, it can hand equipment to a third party without firefighters necessarily being available. But even if the cause of action does arise, that does not put firefighters in a position different from any other employees whose employer may have statutory duties placed on him. Indeed, if the amendment were accepted for the avoidance of doubt, it could in fact create doubt. It could lead one to question the position of other groups of workers who carry out functions governed by legislation and whose working conditions may change as a result of legislative changes.

Therefore, we see no reason to accept an amendment that would litter the Bill with unnecessary "for the avoidance of doubt" clauses. I say that because, clearly, the amendment accepted in Grand Committee was an "avoidance of doubt" clause. If the amendment were accepted, it would serve only to cast doubt on any other legislation that was silent on the issue.

My noble friends have said repeatedly, with the best of intentions, that they want to protect the right to strike for firefighters. We claim, according to our best legal advice—I repeat: that advice is not contradicted by any outside independent bodies—that that right is not under threat as a result of the Bill. The Bill does not jeopardise or alter the firefighters' or their union's protection from immunity under the Trade Union and Labour Relations (Consolidation) Act. Therefore, I respectfully ask my noble friends to withdraw the amendment.

Because my noble friend has been kind enough to allow me to put on the record the Government's view, I want to stick to what I said earlier. I shall be happy to give way and shall seek to answer any questions that he wishes to put to me; if I sit down, I shall conclude the debate.


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