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John McDonnell: That is exactly the purpose of the amendment, and nothing more. It is designed to take the Government's intention as stated in ministerial statements and enact it in the legislation.

I shall explain the doubt that I described. On 30 June 2003, the Lords warned that the terms of the Bill contained a threat to the right of firefighters and the FBU to take lawful industrial action. This was not an intended threat by the Government—a point made

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explicit by the Secretary of State and the Minister—but it is a possible threat. The TUC has also expressed this concern. The Lords argued that the Bill contains provisions that could enable a claimant to obtain an injunction against a strike, or the threat of a strike, by the FBU, even in a trade dispute in which all legal requirements, such as a ballot, had been fulfilled. Why is that so? I shall answer that by referring to what I shall describe as the Wedderburn doctrine. In the UK, there is no explicit right to strike, but trade unions are now afforded certain immunities in law. Under part V of the Trade Union and Labour Relations (Consolidation) Act 1992, trade unions are protected in a trade dispute, and after a ballot, from actions on the basis of a breach of contract. That provision was inserted into law by Sir Charles Dilke, a well-known liberal progressive, in 1906.

Mr. Andrew Dismore (Hendon): It was the Trade Disputes Act 1906, following the Taff Vale case.

John McDonnell: Indeed. The Taff Vale case was part of the instigation of the Labour party's foundation and representation in Parliament.

The problem is that the Court of Appeal, in the case of Meade v. Haringey Borough Council, held that this protection does not apply where the union induces a breach of duty imposed by statute, not by contract. Lord Wedderburn quoted Lord Eveleigh at length in this regard. 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."

Lord Denning agreed. He said that the legislation gives the unions

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

The Government have contested that point, saying that there is an uncertainty in the meaning of Denning and Eveleigh, but those statements could not have been more explicit. Indeed, although the judgment in that case may have been criticised in the generality, there has been no criticism of the reference to the statutory duty. In addition, that interpretation was even used in the case of R v. The Governors of J School, in 2003.

The new Bill introduces a number of statutory duties. Of the many examples that Lords Wedderburn and McCarthy raised in their briefing for the Lords debate, I shall cite just one that was seized on by Lord Wedderburn. Under clause 1(1)(b), the Secretary of State may

"give . . . directions to fire authorities about the use or disposal of property or facilities."

The fire authority has a statutory duty to comply with the direction contained in such an order. Wedderburn considers the example of a fire station closure and said that firefighters from the station under threat might persuade other firefighters to take industrial action against the closure and the removal of pumps, which threaten public safety and, indeed, jobs overall within the service. It could be after a ballot and it could involve

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all the members of the FBU nationally. The union, Wedderburn states, would "clearly be at risk" of liabilities

"for inducing a breach of the fire authority's statutory duty to comply with the direction".

Wedderburn further asserts:

"At present it is lawful for firefighters to strike against the closure of stations. Under the new law as the Bill stands it would not be lawful."

What was the Government's response to the noble Lords and Baroness Turner? Doubts were raised when the Bill was first debated on 30 June 2003 and the Government were warned about the problem. The noble Lords pleaded for delay and produced a detailed legal argument, suggesting helpful amendments. No legal argument came from the Government until four months later on 31 October. The response was contained in a letter from the Minister with a 10-page legal note three days before Third Reading.

The first main point in the Government's response was that avoidance-of-doubt clauses are inserted only where doubt exists. I have to say that there is no doubt that there is a doubt on this matter. There is a contested doubt in the Lords from people who have a vast range of experience in industrial relations—they are challenging the Government's legal opinion. When noble Lords with great experience, as well as the TUC, express a doubt, there is a doubt.

The Government also believe that it is "highly unlikely" that a union would not be protected by existing legislation, but highly unlikely is not certainty. The position enables an element of doubt to creep into any future actions. The Minister also stated clearly that the threat to firefighters' right to take industrial action was not present; that was not the Government's intention. I accept at face value the Government's assertion. I believe in the good will behind that statement, but the courts will not necessarily give effect to the intentions expressed by Ministers if those intentions are not enacted clearly in the Bill.

In their note to the noble Lords, the Government relied on the case of Pepper v. Hart 1993, which has enabled ministerial statements to be considered, in limited circumstances, by the court as the background to legislation. However, ministerial statements do not govern the meaning of an Act. Pepper v. Hart enables construction of ambiguous, obscure or absurd statutory provision. In practice, it serves simply to remove ambiguity. Well, that is exactly what my amendment is designed to do—to remove the ambiguity at first stage.

Lord Wedderburn drew Ministers' attention to the more recent case of Wilson v. First County Trust 2003, where the Law Lords again expressed a view on the general application of Ministers' interpretations. The result of that case was explicit: it is the words of the Bill, not the intentions of Ministers, that control the meaning of the Bill itself.

Mr. Kelvin Hopkins (Luton, North): My hon. Friend has talked about assurances from a Minister, which would at least morally bind an existing Government, but they would not necessarily bind a future Government who might be more hostile to trade unionism and take a different view of the legislation than the present Government. Is that not the case?

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John McDonnell : There are clearly elements of future interpretation of legislation and future ministerial statements that might have some impact, but that is yet to be tested in the courts. It is open to debate, leaving further room for doubt. I shall be quick now, because other. Members want to contribute to the debate.

We have all experienced the danger of doubt in industrial relations in negotiations about individual words, but it is more dangerous in industrial relations when injunctions are flying around. Injunctions against trade unionists taking industrial action are granted in interim proceedings. Most of us who have been involved in trade unions in the past will have had injunctions made against us at the interim stage. It is not only when a claimant, an employer or a third party can prove their case that an interim injunction is awarded, but when a claimant can show an arguable case.

Diplock expressed a test—whether there was a serious question to be tried—which amounts to a different burden of proof for an interim injunction than for a full trial. If there is any doubt that the law is working against the individual union, it will be an arguable case. The arguable case obviously needs to be accompanied by a balance of convenience, and the Government have argued that that balance in many of these issues will rest with the union—but Lord Wedderburn said that he could find not a single case in which the balance of convenience has weighed in favour of a trade union in an interim injunction of this sort.

I shall now return to the real world—with apologies to Lords Wedderburn and McCarthy and Baroness Turner in respect of the legal arguments. The Bill was introduced after a long and, I have to say, bitter dispute. The Deputy Prime Minister, the Minister for Local Government, Regional Governance and Fire and the Fire Brigades Union all want to put that dispute behind them and move forward to a programme of reform and investment in the fire service. However, the climate of industrial relations in the fire service is already deteriorating over the non-payment of the first stage of the pay award. The Government need to send out the clearest possible message from this debate that the Bill does not contain any hidden threat to the FBU's right to strike. The best way to achieve that is, with the greatest respect to Members present, to remove any doubt from the Bill—not by making a ministerial statement, but by building a provision clearly into the Bill to the effect that no action could be taken on the basis of a breach of statutory duty.

Ms Joan Walley (Stoke-on-Trent, North): I shall be brief because I know that several hon. Members want to speak. I congratulate my hon. Friend the Member for Hayes and Harlington (John McDonnell) on the selection of his amendment and I am grateful that the Speaker has given us the opportunity to consider the amendments today, before the Bill becomes law. I cannot stress enough the urgency with which the Minister should respond to this brief debate.

I was present at the Remembrance day parade in my constituency in Burslem on Sunday when I spoke to members of the Staffordshire fire service, and I am aware of a heartfelt demand and need to move on and leave what has happened behind, to embrace the modernisation agenda and to ensure that we have

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proper industrial relations in place. That is why I feel that clarification of the issues raised by Lord Wedderburn and others in the other place is critical.

I believe that little more than poor advice is contributing to the doubts currently expressed and that the concern felt by many hon. Members should not inadvertently deprive the Fire Brigades Union of its protection in law in the event of it taking industrial action. The bare bones of the matter is that the statutory trade union immunity applies where the union has induced a breach of contracts, but the immunity does not apply, as my hon. Friend the Member for Hayes and Harlington set out, where the union has induced a breach of a statutory duty. If orders made under the Bill create statutory duties, it follows that industrial action taken against an order will, arguably—I say arguably—not be protected by the normal immunities. That is why I ask the Minister to respond to the concerns expressed today.

The Government have made it clear that they do not intend to deprive the FBU of the right to protection for properly conducted industrial action. I do not doubt that for one moment, but that is why it is so important that adequate provisions to ensure that protection should be included in the Bill. That is the purpose of the amendment. If there is the slightest doubt that the Bill could lead to the removal of that protection—as my hon. Friend the Member for Hayes and Harlington said, it has been in place to help trade unionists for more than one century, I—and, I believe, many others—would expect the Government to take steps now to clarify the position.

Anyone who has taken the trouble, as I have, to read the contributions of Lord Wedderburn and Lord McCarthy in the other place and to study the 10 pages of notes placed in the Library, and who knows of the integrity of our noble Friends and of all their work in employment relations, will conclude that a considerable element of doubt remains, although I saw that my right hon. Friend the Minister was shaking his head just now. The amendment will remove that doubt and it is difficult to see what possible objection the Government could have to that.

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