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Lord Campbell of Alloway: I know, but I still beg to movealthough we are all clobberedso that we can move away from a personal discussion. This does not concern any of us. I do not know who is right or who is wrong or what happened. I do not care. It can be sorted out somewhere else between noble Lords. I ask the noble Lord to allow us to get on with our job.
Lord Wedderburn of Charlton: I am most appreciative of the noble Lord's comments. I agree with him. I am trying to set our discussion in a context that is different from that created by those who wish to destroy the integrity and honour of my noble friend and myself. As that was done in Hansard, I am entitled to reply in Hansard.
I come to the most astonishing fact of all. I pause only to say that the intervention of my noble friend Lord Evans of Temple Guiting is the first time that anyone has said anything like that in an extensive and detailed correspondence with those in his office, including the Chief Whip. Nobody said that he was there, and nobody has said that there were all those witnesses. If the noble Lord wants to produce them and there is some due process in this matterinstead of the launching to and fro of accusations without any inquiryI shall be happy to deal with it and to publish entirely all the documentsto one of which, I come.
I collected up my papers after going to Hansard on the night of 7th July. I have a great number of files on the matter, as noble Lords will know. When I got home, I put them away. I looked at them the next morning, and I found in them a document that is relevant to the Committee's discussion. I am sorry to have to put it into Hansard, but I did not choose Hansard as the vehicle for the attack. If it is a vehicle for the attack, I am entitled to use it as a vehicle for the defence.
The document that I found the next morning among a jumble of papers, most of which were mine and several of which I could not understand, is dated 3rd July, 2003, the day that the trouble began. It is addressed to Matthew Evansthe noble Lord, Lord Evans of Temple Guitingand copies were to be sent to the Chief Whip and to the noble Lord, Lord
Lord Wedderburn of Charlton: My noble friend informed the Committee that he was in order to move Amendment No. 33. If he does not know the difference, he should read the Companion again. The document goes on:
No one, no member of staff and no Member of your Lordships' House has the right to say that we table amendments to delay progress. My noble friend, who is quicker at this than I, spotted last timethe Committee will rememberthat perhaps what we were really being accused of was filibustering. This has nothing to do with filibustering, except on the part of those who have not bothered to understand the amendments.
With generosity, this astounding communication from a member of staff might be attributed to inexperience or treatable misjudgment. For a Minister, who presumably relied on it since he had a copy, or other officer of the House to distribute such a documentand it is my belief that the document fell into the hands of other noble Lordswhich my noble friend has suggested contains defamatory accusations and which certainly impinges on our integrity, seems to me to go much deeper in the context of our debate and to require further, fairer and proper investigation.
If the noble Lord does not wish to intervene, I shall move to the substance of the matter. I assure my noble friends that I have not been worn down by my much greater interest in the amendments which can make sense of the silence of this Bill. I assume that the law in our amendments has been the subject of close study and careful investigation by the Minister and his advisers. I therefore intend to outline very briefly the case. I shall do so without my notes and will return to any of the authorities if any of my propositions of law are disputed in the reply.
Strikes in this country are lawful, in so far as they are, when they can rely upon the protection of the Trade Union and Labour Relations (Consolidation) Act 1992largely Section 219. That section and others like it protect actions taken in contemplation or furtherance of a trade dispute where they would otherwise be tortious on certain grounds. As far as our context is concerned, the relevant grounds very largely induce a breach of strikers' contract of employment. What is not protected in trade disputes and in industrial conflict is action which induces a breach of or breaches a statutory duty which is independent of the contract.
That sounds like a technical point, but it is not very difficult to understand. Sometimes statute makes the duty a part of the contract. Members of the Committee will know, because they are interested in the matter, that in the Equal Pay Act 1970 and in the Employment Act 2002, duties on employees and employers were made part of the contract by statute. They therefore became contractual duties and rightsin the one case the equality clause and in the other case the right and duty to have disciplinary and grievance procedures followed before appeal to an industrial and employment tribunal.
Where the statute does not make the nature of the duty clear, it is frequently found that the statutory duty rests on the basis only of statute and is nothing to do with the contract. The issue for the courts is: what is to be done if it is broken, or, more particularly, what is to be done if any organisation induces its breach? I quote one case. In Meade v Haringey Borough Council in 1979, the union induced a breach of duty by the local authority and its custodians of schools which broke the Education Act duty to provide educational facilities. The Court of Appeal heldand very understandablythat this was an inducement of a breach of a statutory duty and could not possibly be protected by trade dispute industrial legislation, even though it was clearly a trade dispute because of the nature of the common law wrong; not because of the nature of the industrial conflict legislation, but because of the nature of the tort inducing breach of statutory duty.
Inducing breach of statutory duty constitutes unlawful means. A breach of statutory duty constitutes unlawful means. There is an argument, which I shall deploy to the Committee if it becomes necessary in reply, as to precisely what kind of illegality that is. There are unanswered questions in the courts. The Court of Appeal in 1989, in the most important authority, itself showed how difficult that area is. But there is absolutely no doubt on the basis of that judgment, which went to the House of Lords on quite different matters, and on the basis of some 50 other judgmentswhich I am perfectly happy not to deploy today, but to place them in a document which will be available to the Committee if it wishesand especially in the light of Mr Justice Laddie's summary of the law on unlawful means in a large judgment of 2001, it is perfectly clear that a breach of a statutory duty is unlawful means.
As I said to the Committee at our last session, for the award of an injunction in industrial action cases, all that has to be proved is an arguable case that wrong has been done. Therefore, once the claimant claims an arguable case and the court sees the balance of convenience and public interest favouring the claimant, which at that point it often does, an injunction will be issued. I, and some other Members around the Table, have been in cases time and again where that has happened. Often, we have tried to argue that no common law wrong has been done, but if Members of the Committee now try to argue that where there has been a breach of statutory duty, they will be met by the authorities which I shall cite, if necessary, in reply.
I am summarising my case. The noble Lord thinks the summary is too long. I am sorry, the case is complex; it is a complex Bill. I direct the noble Lord's attention to Clause 1(8). It illustrates that the Government have gone some way towards solving the problem in which there is a breach of duty by a fire authority employer. I moved an amendment in our last meeting suggesting that it should be even more explicit. It says that it is a duty of a fire authority employer to comply with a direction made under an order; it does not tell you what will happen if it does not. I said that I could not believe that the Government wanted all third parties who might be damaged by such a failure to comply to have the right to go to court to seek injunctions. If so, there would be a flood of litigation.
The Minister will tell me if I am wrong, but, as I understood him, that did not worry him at all. He thought all possible third parties should have the right to bring action for a breach of duty. If the same is trueas it appears to be from the mere silence of the Billthat it is a breach of duty for a fire brigade member to break an order made which affects him in terms of his employment, and if it is true that a union that induces that breach of the order is inducing a breach of a statutory duty, there is no protection in strike law, trade dispute law or trade union law for that industrial action.
Of course that makes extraordinary the Government's insistence that nothing in the Bill will affect the legality of industrial action. Someone, somewhere has either overlooked the point or thought somehow that it was not relevant. I think I know why that is. I shall conclude by saying so. I believe they have concentrated only on the point they have made, although they have made it inaccurately in their White Paper by misquoting the section involved. They think that it is all about whether the Attorney-General can bring an action. He might bring an action, but centrally it has nothing to do with that whatever. What it has to do with is the right of every citizenwhich I take the Government, from what the Minister said last time, will not in any way try to stopto bring an action for an injunction to stop strike action where he thinks it is illegal using unlawful means and where he claims his interests and his property may be involved.
Indeed, the Minister has pressed upon us the fact that orders will be made under the Bill, only when there is a crisis or, as I remember, an emergency. In a crisis or an emergency, many people might feel their interests were involved. It may amuse the Minister but it does not amuse them, and they are likely to seek injunctions. On my reading of the Bill and the authorities, which I shall be happy to cite, they very likely in most cases could do so. Our amendments try to stop liabilities in industrial action being extended by the Bill. At the moment, the courts would be entitled, and indeed very likely obliged, to hold that those strikes and threats of strikes would be illegal on the grounds I have outlined.
Our Amendment No. 34, and, although in rather less perfect form, Amendments Nos. 35 and 41, are alternatives for the Government not to let the Bill open an avenue for injunctions against strikes because of a breach of the Bill. They say they do not want that. Therefore, I urge them to accept, at any rate, the thrust of our amendment, especially Amendment No. 34, which is the bestif they want to redraft it, that would be quite normalto get rid of what is in fact a threat to the legality of strike action by fire fighters and their union, which the Bill, as drafted, at the moment presents. I beg to move.
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