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Lord Davies of Coity: My Lords, am I entitled to ask a question at this point? I still have a little difficulty. Like me, the Minister is not a lawyer. He said that the amendment could create doubt in other areas of legislation. I am not sure that I follow that point. However, if it did, perhaps other elements of legislation should be corrected so as to avoid the occurrence of doubt. I have not heard a legitimate objection to the amendment, which seeks only to reinforce what the Government said they wanted to do—that is, to protect firefighters.

Lord Rooker: My Lords, the right of firefighters to strike is not under threat or jeopardised as a result of

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the Bill. I cannot answer for other Bills or for the knock-on effect of the legislation. I freely admit that our legal advice is under challenge, although not from outside Parliament. Every day of the week plenty of people come forward with legal advice which has not been asked for by government, but it is all read and considered.

However, I also say to my noble friends that during the course of the Grand Committee and, indeed, even during the Report stage I went back to my right honourable friend Nick Raynsford and to the legal advisers and asked them to go through all the amendments again. I asked whether we could accept any one of them which would improve the Bill without adding any possible unintended unfortunate consequences. The matter has not been dismissed; the amendments tabled on Report and in Grand Committee have been gone over repeatedly. The matter has been genuinely considered.

We also have to ensure that we do not repeat things in legislation. I have been told by parliamentary counsel—it is something that I have learnt to accept as a Minister—"Don't put the same thing in a Bill twice or you're asking for trouble". That is absolutely fundamental. When something is put in twice, my learned friends often end up in court stuffing their pockets and no one knows what will happen.

Therefore, having gone over the amendments tabled in Grand Committee and on Report, we have genuinely asked, "Can we toss them a bone? They seem sincerely concerned." I do not question anyone's sincerity. We have asked, "Is there anything that we could usefully add or accept from the amendments that would not cause a problem in the operation of the Bill, if enacted?" One has to remember that because, by and large, it is never mentioned.

We do not want to operate the Bill as an Act. It has a limited life of only two years. It will be operated only in the most extreme circumstances—for the Secretary of State to take powers to give workers a pay rise. The dispute that has flared up stops them getting a pay rise. I made it clear in Grand Committee that we were not contemplating pay reductions. Such a power is unusual, to say the least, but it is the kind of power that would be operated. We do not want to use the Bill or Act. It is being introduced as a longstop on the basis of what has taken place not over the past six weeks or six months but over the past 12 months.

I shall not go into the current situation because it would be barmy to do so, but what my right honourable friends the Deputy Prime Minister and Nick Raynsford said when the Bill was in the other place is as valid today as it was then. They have reluctantly brought forward the legislation. They do not want to use it, but they feel that in the public interest it is absolutely necessary and we have gone over it with a fine-tooth comb. As I have said repeatedly at every stage and between the stages—we have had a long time in which to do it—our best judgment, with the best advice that we could have, is that the Bill does not jeopardise or alter the firefighters' or their union's protection from immunity

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under the Trade Union and Labour Relations (Amendment) Act. If no one else has any other question I respectfully ask the noble Lord to withdraw his amendment.

Baroness Hamwee: My Lords, before the Minister sits down, I have a question that follows on from the previous one. I well understand the point made by the Minister that we should be careful in any legislation not to affect what may be in existing legislation. Leaving aside whether the amendment is necessary, in answer to the question on what damage the amendment would do, the Minister appeared to refer to prospective legislation. Perhaps he has some examples of existing legislation that he can give to the House. Are there current illustrations that he can give? Perhaps I should talk for a moment or two longer so that he can receive help on that, although he may have some examples in his brief.

Lord Rooker: My Lords, I do not have examples that would relate to the way in which the noble Baroness has asked her question; for example, in relation to other current disputes or anything that is in the offing. I did not imply that there are doubts about other legislation or that people's working conditions have changed as a result of legislative changes. In itself that is sometimes unusual, but in relation to prospective legislation I want to make it clear—although it has been raised only in passing—that there is no direct connection between this legislation and what will presumably come in the Queen's Speech on the reorganisation of the fire and rescue services based on the White Paper. I have no doubt that these issues will be deployed in that respect again, but there is no hidden agenda to connect one with the other.

I have one example. Teachers' pay and conditions are settled under a statutory order. I do not make a great play of that, but I make the point that there are examples of other workers whose pay and conditions are settled by legislation, which may create a doubt. In answer to the noble Lord, Lord Davies of Coity, I do not believe that that is a doubt which means that one has to go back and search other legislation. With the best will in the world and the best advice that we can have—I repeat that on behalf of the Government—we are not playing games. We do not have a hidden agenda to take away the right to strike from firefighters and I reject that as an outrageous point if anyone makes it. It is not part of our agenda, explicit or implicit. Our view is that this legislation does not do that.

Lord Wedderburn of Charlton: My Lords, I am certainly not playing games. I am deadly serious. The Government do not want this Bill, but they are prepared to push it through in the face of quite legitimate, reasoned opposition, as a stopgap. Our amendment is a belt and braces. It is not a matter of whether the Government want to operate the Bill. That is not the question of law on which my noble friend Lord Rooker gave us a great disposition in legal terms. Lord Asquith once described a Bill and

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someone objected to his description so he said, "I know; I am talking English not law". My noble friend Lord Rooker did not know that he was talking law rather than English. He gave us a lot of law. He spoke as a lawyer, and so he should because your Lordships are to make law in this Bill.

There has been talk about lawyers who stuff their pockets—Government Ministers are fond of saying that. I have not made a buck out of this Bill and I do not suppose I shall be instructed upon it, but I am concerned about what the Bill says. Either Front Bench can have all the intentions, all the agendas and all the subjective states of mind it likes, and that does not count for a peanut in a court. The court is concerned with the Bill and the Act when it is passed, in its background and in its context, and what it says. We are asking the Government to put their intentions in the Bill. They will not.

The Minister says that they consulted their legal advisers back in early June. In Grand Committee, we begged them to let us have a full description of the legal grounds on which they were resisting our amendments. They would not do that. Noble Lords can read the speeches. I hesitate to read out anything more, but this legislature is for challenging what Ministers put on the record. In the records of Grand Committee and Report there is no legal argument. I got it last Friday afternoon, in a fax. That is what the Minister relies upon tonight and noble Lords cannot even see it. He says that it is not in the Library of the House. I was told that it was going to be widely distributed. My memorandum is in the Library. Anyone who has not read it should go and read it because it deals with every one of the points that my noble friend Lord Rooker made.

First, my noble friend said that the Meades case was decided by Lord Denning. That is what the note from the right honourable Mr Raynsford said. That is not accurate. It is not accurate because it was decided by the Court of Appeal. My noble friend Lord Rooker appears never to have heard of Lord Justice Eveleigh. Of course he had not; it is not in his legal advice. Lord Justice Eveleigh laid down the same principle. Then my noble friend says that the statutory duty is not open to an injunction if it is not actionable for damages. If he looks at the Court of Appeal decision in Associated British Ports v The Transport and General Workers Union, which was the case where the employers got an injunction against the dock strike, he will find that the Court of Appeal says that that is not necessarily so. Has he read or received advice on that case? I doubt it, because the legal note does not mention the Court of Appeal judgments; it only mentions the House of Lords Appellate Committee, where the case went off on totally different grounds.

So my noble friend's lawyers do not appear to have heard of that. He repeats this statement in the House. He tells your Lordships to make law on that basis, which is inaccurate. He also says that an individual of the public would not be able to claim. I have never argued that he would. I argue what was said by Lord Fraser of Tullybelton in a leading case, that a member

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of the public who suffers special damage in his interests would be able to bring an action for an injunction for breach,

    "of his private right because of the interference with the public right which inflicts special damage on him".

If a company owns a factory, and it is in an area where fire stations are being shut, it will have a special interest. It needs to show that its interests could be damaged when it applies for an injunction. That is the rule of law. When my noble friend Lord Rooker pronounces a rule of law that every member of the public cannot bring an action for an injunction, he is tilting at windmills.

Furthermore, my noble friend says the leading case of Capital and Counties, in 1997, shows that I am wrong on all this. If he looks at my memorandum, which I do not think he has read, he will find that I deal with that case. I am half inclined to read the true account of that case. It deals with something quite different. If noble Lords look at my memorandum they will find it in there. I have said that this is not a basis on which the Government's argument is right. My noble friend then said that all these things had to be proved. When he said that—adding up his arguments—he ignored the basic fact. I am not surprised, because the legal advisers' note ignores the central legal point—namely, that in an injunction case, you have to prove only that something is arguable; not a full case beyond reasonable doubt or on the balance of probabilities. That is why trade unions are anxious about labour injunctions; that is why inducement to breach statutory duty produces an arguable case.

Lastly—the noble Baroness, Lady Hamwee, and my noble friend Lord Davies of Coity naturally took up this point—the Minister argued that that was all very worrying, because inducing a breach of statutory duty might be actionable after all, that that might arise under other Acts and that the amendment should not be carried because it would do something special under the Bill. What are those other Acts? Is that part of a new policy to enforce statutes that affect workers to prevent them having a right to strike in trade disputes, even if they have held a ballot? If so, that is very worrying.

The Minister was then asked for an example. At first, he could not give one, but after receiving a little prompting, he mentioned the teachers. A number of decided cases in the courts deal with the teachers; I deal with them in my paper. I had better not mention them, or else the Minister, having propounded a lot of law, will tell me that I am being legalistic. But he will find in my paper, especially in the footnotes, reference to various decisions of your Lordships' Appellate Committee in which it has been pointed out—notably by the noble and learned Lord, Lord Hoffmann—that there may well be a worrying conflict between the statutes governing teachers' conditions and what the House has recently held to be their right to strike.

In fact, it is much easier to spell out the right to strike from the education legislation than from the Bill. If the Government were to introduce into the Bill the

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safeguards that we can find to make it arguable that teachers have the right to strike, they might have made a step forward.

New statutory duties are created by the Bill. Firefighters would be picked out in a discriminatory fashion for new limitations on their right—after a ballot in a trade dispute—to take industrial action that induced any non-compliance with such statutory duties. The amendment does no more than preserve the application of existing law for firefighters.

I notice that my noble friend did not deal with closures of stations. Noble Lords will notice that the example of their having a right to strike now with regard to impending closure of stations but their losing that right under the Bill as it stands was never answered. It never has been answered; it was not answered in the legal advice—which perhaps one day your Lordships will see.

I invite the Government to publish every document on the matter. I defy them to deny that most lawyers see perfectly well what is the trouble. I have consulted many scholars and practitioners in the field. I have spent 50 years with the subject. Noble Lords can study the record: I have never taken a point against my Government that has not had a basis in case and statute law. I have spent two days assembling this case, and I want to conclude—

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