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2.30 pm
In a celebrated court case relating to education, it was stated that the court can use Hansard only as an indication of the Government's intentions if the Act in question is ambiguous. If the Fire Services Bill receives Royal Assent and becomes an Act, following our deliberations today, it is in any way ambiguous, it is essential that I can take a message to those Staffordshire fire service members that we have been given a clarification by the Minister today. That would be helpful in the event of any action that the courts may take in future.
Mr. Edward Davey: On this occasion, I agree wholeheartedly with the hon. Member for Hayes and Harlington (John McDonnell). As he knows, my colleagues and I disagreed with his position on the actual dispute between the Fire Brigades Union and the employers and the Government, but he and we agree
that the Bill is otiose and indeed odious. We agree that his amendment should be included so that we do not retain the doubts that he and the hon. Member for Stoke-on-Trent, North (Ms Walley) expressed.I agree with the hon. Lady. As she made clear, the amendment would confirm rights that have been around for many years. It is about 97 years since those rights were enshrined, during the first year of that great Liberal Government of 1906, and it is important that they be retained. It would be bizarre if a Labour Government were unwilling to be clear about that right when previous Conservative Governments, of a right-wing nature, have upheld it. It is odd that a Labour Government would want to allow any ambiguity, so I hope that the Minister for Local Government, Regional Governance and Fire will think again.
The Minister wanted the power to impose a settlement through the Bill. We disagree, because we believe that mediation and arbitration—compulsory, if necessary—are a much better way forward. Ministers have always said, especially to Labour Back Benchers, that the measure would not make a strike illegal; it would not outlaw industrial action that followed a legally constituted ballot. However, given the evidence that we have heard—the remarks made by noble Lords who are extremely experienced in this area of the law—there is doubt. The Minister keeps shaking his head, but the fact that such opinions have been expressed suggests that there is a prima facie case to answer.
The Government accepted Lords amendment No. 2 to ensure that there was no doubt about the status, in relation to the Bill, of the agreement made in June 2003. It would thus seem logical that the Government should allow the amendment proposed by the hon. Member for Hayes and Harlington to be tacked on to the new clause so that there is no doubt that properly constituted ballots for strike action would not be made illegal by the backdoor.
Even at this late stage, I hope that the Minister will think again; he will not only placate Liberal Democrats but Labour Members.
Mr. Dismore: I declare an interest in that I remain a solicitor in a law firm that practises in industrial law, although I am not taking cases at present. I also spent a year working on it when, some years ago, I was a postgraduate student of Professor Lord Wedderburn, QC. Having completed that postgraduate degree, I practised in that area of law for 20 years, advising the Fire Brigades Union for most of that time—[Interruption.] I realise that I shall not be paid by the hour this afternoon.
The FBU is law-abiding; it always has been and always will be—at least as far as I am aware. However, chief fire officers are incredibly litigious. During my time as an adviser to the FBU, I had to defend the union on many occasions in legal actions over trade disputes brought by chief fire officers. They seemed to think that was the way to sort things out, even though it usually made things 10 times worse in the fire service—as generally happens when people go to law over any form of industrial action.
There is little doubt in this case. I know, from advising the FBU and many other public service unions over the years, that the whole tort of inducing breach of statutory
duty is incredibly problematical for them. Statutory law has never really got to grips with providing the correct immunity for the right to strike of public sector workers.The real issue relates to the consequences if we are wrong in advocating our position. If we and the Government are completely wrong about the right to strike, the consequence will be that the right to strike is taken away from the fire service, not only in the context of the Bill but of the Fire Services Act 1947 and whatever may replace it. If we are only partly wrong, the inevitable consequence will be that a chief fire officer will try his luck if he is met with trade union opposition when asked to implement an order under the Bill.
Jeremy Corbyn (Islington, North): My hon. Friend the Member for Hayes and Harlington (John McDonnell) cited the judgment in Meade v. London Borough of Haringey. I was a member of Haringey council at the time. We closed schools for safety reasons and the subsequent case resulted in that judgment. Does my hon. Friend the Member for Hendon (Mr. Dismore) accept that the case was brought in an atmosphere of spite and vindictiveness against the council, which had closed schools to ensure that children were safe on that day? The case was brought for that reason alone rather than for any of the other reasons claimed by Meade and others.
Mr. Dismore: I am grateful to my hon. Friend for that intervention. He illustrates the fact that the point goes beyond the Bill. The tort of inducing breach of statutory duty is a major problem for the public sector in general and the Bill will make that worse for the fire service.
Even supposing that we or the Government are only partly wrong, it means inevitably that a chief fire officer will test the position in the courts. Such a case would take place not against a background of civilised debate in this Chamber, but in the full spotlight of a major row in that industry. What view will a court take in those circumstances? Believe it or not, judges live in the world; they read newspapers and, in general, they come from a particular background. As my hon. Friend the Member for Hayes and Harlington said, the judge has only to be satisfied that there is an arguable case on the facts in law. That is an extremely weak test, which was introduced by Cyanamid v. Ethicon—if I remember correctly from my law student days.
If a union failed to comply with an interim injunction, it would end up in the great chain of legal consequences that we saw during the miners' strike. Fines for contempt of court would be imposed and ultimately there would be sequestration, with all that comes from that. A law-abiding union could be put in an incredibly difficult position simply because the Government did not decide to accept an amendment that would avoid the doubt that the Bill could create. The consequences for the fire service, both generally and in terms of industrial relations, are serious. The consequences for public sector trade unions are serious, yet the problem could be dealt with relatively easily if the Government recognised that a small amendment to the Bill would make the position clear. It would not be a big deal for the Government to accept the argument put forward by the pre-eminent figure in this area of law since the war. Professor Lord Wedderburn is the leading expert in the field.
Accepting the amendments would not even be a U-turn for the Government. If they do not accept them, the consequences for the fire service and public sector trade unions in general would be very severe.
David Hamilton (Midlothian): Will my hon. Friend put the matter in the simplest terms, for those of us who are not solicitors? Should not the rights afforded to FBU members be the same for every trade union member? Is not that the bottom line, irrespective of legal arguments?
Mr. Dismore: I know that the debate has been legalistic, but the question is: would the union be allowed to take industrial action if it objected to a direction given to the fire service by the Government? Such a direction might involve closing a fire station or redeploying a pump. There is grave doubt that the union could take industrial action legally.
Mr. David Drew (Stroud): This is the crux of the debate with the Government. Shutting down a fire station would be the most controversial possibility, but a dispute could be with the Retained Firefighters Union rather than with the FBU. The retained firefighters would be put in an invidious position. What is my hon. Friend's opinion: should they represent their community, or obey the demands of the chief fire officer?
Mr. Dismore: If the retained firefighters were defending a station against closure for community reasons, the action would be illegal, as it would not be considered to be a trade dispute under existing law. If their aim was to defend their jobs, that would be a trade dispute, and therefore perfectly legal under existing law as well. However, it may not be legal under the Bill.
Does the House believe that public sector workers should have the right to strike? That is the question. Such a major step is never taken lightly. There is no need to go into the reasons for the recent, terribly damaging dispute in the fire service, the first major dispute of its kind since the winter of 1977–78. I hope that the Bill does not cause a relatively minor problem that could be sorted out to escalate into something major and become the cause of confrontation.
It is an essential human right that people are able to take industrial action. If we believe in that right, the amendment would avoid an awful lot of doubt. I urge the Government to accept it.
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