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Mr. Dismore: Will my right hon. Friend give way?

Mr. Raynsford: Let me deal with amendment (b) first. Then I will give way to my hon. Friend.

Similarly, amendment (b) would provide that nothing in the Bill should enable the employers to impede the possibility of mediation, conciliation or arbitration by pursuing an action against the union over the breach of a statutory duty imposed by an order under the Bill. We

12 Nov 2003 : Column 331

do not believe that anything in the Bill would have that effect anyway. It is not our intention that any order would prevent the employers from seeking mediation.

I shall now deal with the underlying point of the amendments, which is whether the Bill creates a new situation in which action could be taken against the union relating to a breach of a statutory duty created by an order under the Bill. As my noble Friend Lord Rooker repeatedly emphasised in another place, we say that it does not do so. Therefore none of the amendments is necessary or helpful.

3 pm

Mr. Dismore: My right hon. Friend gave a list of things that he thought would not happen under the Bill. Would that list include hours of work and shift patterns, for example, which could easily form part of a trade dispute, or the place of work, which could be important in terms of fire station closure?

Mr. Raynsford: If my hon. Friend will bear with me, I shall deal with precisely that point, which would almost certainly fall under the powers in clause 1(1)(a) rather than those in clause 1(1)(b).

Given the importance of the issue and the genuine concerns that have been raised, we have taken extensive legal advice, and we remain convinced that there is no need for the amendments. They all turn on the difference between a breach of a contractual duty and the breach of a statutory duty. Let us consider an example in which the Secretary of State uses the powers in clause 1(1)(b) to direct a fire authority to make equipment available to a neighbouring authority, and the union does not like the direction and calls for industrial action. The firefighters work for the fire authority and have a contract with it, so if they take industrial action, they will be breaking their contractual duty and not their statutory duty. However, as long as the procedural rules about balloting have been followed and the matter is a trade dispute, the union and firefighters will be protected from action by the Trade Union and Labour Relations (Consolidation) Act, just like any other workers. The Bill makes no change whatever to the position.

What the union would be trying to achieve through the industrial action is however a breach of the fire authority's statutory duty under the direction, so it has been argued, following Meade v. Haringey Borough Council—my hon. Friend the Member for Hayes and Harlington made this point—that a member of the public might be able to obtain an injunction against the union. One cannot obtain an injunction against the firefighters; this would be an injunction against the union preventing it from calling a strike, as by doing so, it will be inducing a breach of statutory duty.

As I said, one has to remember that the Bill does not create new statutory duties. [Interruption.] No, it does not do so. It simply gives powers to the Secretary of State to make directions. We have stated on several occasions the circumstances in which the Secretary of State may make such directions. In any event, the powers are time limited to two years.

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Might any directions, if made, create statutory duties? For a Meade-type claim to succeed, one would have to show that there is a statutory duty that is actionable for damages at private law. That 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 to judicially review the fire authority in the administrative courts if it had failed to carry out those directions. That is an entirely different matter. However, 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 it for damages.

We should remember that not even the fire authority's primary duty of firefighting under section 1 of the Fire Services Act 1947 gives rise to such a claim, so if a homeowner cannot make such a claim where there have been no directions under the Bill, it would seem odd that they should be able to do so if a direction is made under it.

Ms Walley: Will my right hon. Friend give way?

Mr. Raynsford: I am afraid that I do not have time to do so; I must finish my speech in order to give my hon. Friend the Member for Hayes and Harlington the opportunity to respond, as we are discussing his amendment.

We have considered the case very carefully and been extremely careful to discuss it with our lawyers. I have spoken at some length with Lord Wedderburn and sent him a very detailed exposition of the legal advice that underpins our position. We do not believe that there is any reason for amending the Bill. The Bill as it stands makes it clear that the measures cannot create a position in which the trade union's position would be undermined in relation to normal protection.

I urge my hon. Friend to withdraw his amendment.

John McDonnell: The clarity that we need has not been achieved today. The issue that we wish to address is whether a trade union would become vulnerable if it went on strike as a result of a statutory duty that had been imposed by the legislation. The statutory duty is imposed not on the union, but on the fire authority itself. That is the point that my hon. Friend the Member for Hendon (Mr. Dismore) tried to make earlier. Whether or not the Government's lawyers are asserting that they are right is not the point. The point is whether others are expressing a doubt. When Lord Wedderburn, the most pre-eminent industrial lawyer in this country, is expressing a doubt, we must understand that that doubt may well be used in a court of law. On that basis, the Fire Brigades Union will become vulnerable if it undertakes industrial action to preserve its service and jobs.

The point of the amendment is not to contradict the Government, but to take their stated good intentions and place them in the Bill. It is no more challengeable than that. The Government have rejected that position, and I fear that there is only one way of seeking to test the opinion of the House—to press the amendment to a vote.

12 Nov 2003 : Column 333

Question put, That the amendment to the Lords amendment be made:—

The House divided: Ayes 85, Noes 412.

Division No. 360
[3:05 pm


Abbott, Ms Diane
Allan, Richard
Barnes, Harry
Barrett, John
Beard, Nigel
Brake, Tom (Carshalton)
Brooke, Mrs Annette L.
Bruce, Malcolm
Burgon, Colin
Burstow, Paul
Cable, Dr. Vincent
Calton, Mrs Patsy
Campbell, rh Menzies (NE Fife)
Campbell, Ronnie (Blyth V)
Carmichael, Alistair
Challen, Colin
Chidgey, David
Clark, Mrs Helen (Peterborough)
Coleman, Iain
Connarty, Michael
Cotter, Brian
Cousins, Jim
Cryer, Ann (Keighley)
Cryer, John (Hornchurch)
Davey, Edward (Kingston)
Davidson, Ian
Dismore, Andrew
Drew, David (Stroud)
Etherington, Bill
Foster, Don (Bath)
George, Andrew (St. Ives)
Gerrard, Neil
Gidley, Sandra
Green, Matthew (Ludlow)
Hamilton, David (Midlothian)
Hancock, Mike
Harris, Dr. Evan (Oxford W & Abingdon)
Harvey, Nick
Havard, Dai (Merthyr Tydfil & Rhymney)
Heath, David
Hendrick, Mark
Jones, Lynne (Selly Oak)
Jones, Nigel (Cheltenham)
Kennedy, rh Charles (Ross Skye & Inverness)
King, Andy (Rugby)
Kirkwood, Sir Archy
Lamb, Norman
Laws, David (Yeovil)
Llwyd, Elfyn
McDonnell, John
Mackinlay, Andrew
McNamara, Kevin
Marsden, Paul (Shrewsbury & Atcham)
Marshall, Jim (Leicester S)
Marshall-Andrews, Robert
Mitchell, Austin (Gt Grimsby)
Moore, Michael
Mudie, George
Öpik, Lembit
Price, Adam (E Carmarthen & Dinefwr)
Pugh, Dr. John
Reid, Alan (Argyll & Bute)
Rendel, David
Russell, Bob (Colchester)
Sanders, Adrian
Sawford, Phil
Sedgemore, Brian
Simpson, Alan (Nottingham S)
Skinner, Dennis
Smith, Geraldine (Morecambe & Lunesdale)
Smith, Llew (Blaenau Gwent)
Stunell, Andrew
Taylor, Matthew (Truro)
Thomas, Simon (Ceredigion)
Thurso, John
Tonge, Dr. Jenny
Tyler, Paul (N Cornwall)
Vis, Dr. Rudi
Walley, Ms Joan
Wareing, Robert N.
Williams, Hywel (Caernarfon)
Williams, Roger (Brecon)
Winnick, David
Wood, Mike (Batley)
Younger-Ross, Richard

Tellers for the Ayes:

Jeremy Corbyn and
Mr. Kelvin Hopkins


Adams, Irene (Paisley N)
Ainger, Nick
Ainsworth, Bob (Cov'try NE)
Ainsworth, Peter (E Surrey)
Alexander, Douglas
Allen, Graham
Amess, David
Ancram, rh Michael
Anderson, Janet (Rossendale & Darwen)
Arbuthnot, rh James
Armstrong, rh Ms Hilary
Atkinson, Peter (Hexham)
Bacon, Richard
Bailey, Adrian
Baird, Vera
Barker, Gregory
Baron, John (Billericay)
Battle, John
Beckett, rh Margaret
Beggs, Roy (E Antrim)
Bennett, Andrew
Benton, Joe (Bootle)
Bercow, John
Beresford, Sir Paul
Berry, Roger
Best, Harold
Blackman, Liz
Blears, Ms Hazel
Blizzard, Bob
Blunt, Crispin
Boateng, rh Paul
Borrow, David
Boswell, Tim
Bottomley, Peter (Worthing W)
Bottomley, rh Virginia (SW Surrey)
Bradley, rh Keith (Withington)
Bradley, Peter (The Wrekin)
Bradshaw, Ben
Brady, Graham
Brazier, Julian
Brennan, Kevin
Browne, Desmond
Bryant, Chris
Buck, Ms Karen
Burden, Richard
Burnham, Andy
Burns, Simon
Burt, Alistair
Byers, rh Stephen
Cairns, David
Cameron, David
Campbell, Alan (Tynemouth)
Campbell, Mrs Anne (C'bridge)
Casale, Roger
Cash, William
Caton, Martin
Cawsey, Ian (Brigg)
Chapman, Ben (Wirral S)
Chapman, Sir Sydney (Chipping Barnet)
Chaytor, David
Chope, Christopher
Clappison, James
Clark, Dr. Lynda (Edinburgh Pentlands)
Clarke, rh Charles (Norwich S)
Clarke, rh Tom (Coatbridge & Chryston)
Clarke, Tony (Northampton S)
Clifton-Brown, Geoffrey
Clwyd, Ann (Cynon V)
Coaker, Vernon
Coffey, Ms Ann
Collins, Tim
Colman, Tony
Cooper, Yvette
Cormack, Sir Patrick
Cran, James (Beverley)
Cranston, Ross
Crausby, David
Cruddas, Jon
Cunningham, rh Dr. Jack (Copeland)
Cunningham, Tony (Workington)
Curry, rh David
Davey, Valerie (Bristol W)
David, Wayne
Davies, rh Denzil (Llanelli)
Davies, Geraint (Croydon C)
Davies, Quentin (Grantham & Stamford)
Davis, rh David (Haltemprice & Howden)
Dawson, Hilton
Dean, Mrs Janet
Dhanda, Parmjit
Djanogly, Jonathan
Dobbin, Jim (Heywood)
Donohoe, Brian H.
Doran, Frank
Dorrell, rh Stephen
Dowd, Jim (Lewisham W)
Duncan, Alan (Rutland)
Eagle, Angela (Wallasey)
Eagle, Maria (L'pool Garston)
Edwards, Huw
Efford, Clive
Ellman, Mrs Louise
Ennis, Jeff (Barnsley E)
Evans, Nigel
Fabricant, Michael
Fallon, Michael
Field, rh Frank (Birkenhead)
Field, Mark (Cities of London & Westminster)
Fisher, Mark
Fitzpatrick, Jim
Fitzsimons, Mrs Lorna
Flight, Howard
Flint, Caroline
Flook, Adrian
Flynn, Paul (Newport W)
Follett, Barbara
Forth, rh Eric
Foster, rh Derek
Foster, Michael (Worcester)
Foster, Michael Jabez (Hastings & Rye)
Fox, Dr. Liam
Francois, Mark
Gardiner, Barry
Garnier, Edward
George, rh Bruce (Walsall S)
Gibb, Nick (Bognor Regis)
Gibson, Dr. Ian
Gilroy, Linda
Goodman, Paul
Gray, James (N Wilts)
Grayling, Chris
Green, Damian (Ashford)
Greenway, John
Grieve, Dominic
Grogan, John
Hague, rh William
Hain, rh Peter
Hall, Patrick (Bedford)
Hamilton, Fabian (Leeds NE)
Hammond, Philip
Hanson, David
Harris, Tom (Glasgow Cathcart)
Hawkins, Nick
Hayes, John (S Holland)
Heald, Oliver
Healey, John
Heathcoat-Amory, rh David
Henderson, Doug (Newcastle N)
Henderson, Ivan (Harwich)
Hendrick, Mark
Hendry, Charles
Hepburn, Stephen
Heppell, John
Hesford, Stephen
Hewitt, rh Ms Patricia
Heyes, David
Hill, Keith (Streatham)
Hinchliffe, David
Hoban, Mark (Fareham)
Hogg, rh Douglas
Hood, Jimmy (Clydesdale)
Hoon, rh Geoffrey
Hope, Phil (Corby)
Horam, John (Orpington)
Howard, rh Michael
Howarth, rh Alan (Newport E)
Howarth, George (Knowsley N & Sefton E)
Howarth, Gerald (Aldershot)
Howells, Dr. Kim
Hoyle, Lindsay
Hughes, Beverley (Stretford & Urmston)
Hughes, Kevin (Doncaster N)
Humble, Mrs Joan
Hurst, Alan (Braintree)
Iddon, Dr. Brian
Illsley, Eric
Ingram, rh Adam
Irranca-Davies, Huw
Jack, rh Michael
Jackson, Glenda (Hampstead & Highgate)
Jackson, Robert (Wantage)
Jenkin, Bernard
Johnson, Boris (Henley)
Johnson, Miss Melanie (Welwyn Hatfield)
Jones, Helen (Warrington N)
Jones, Jon Owen (Cardiff C)
Jones, Kevan (N Durham)
Jones, Martyn (Clwyd S)
Jowell, rh Tessa
Joyce, Eric (Falkirk W)
Kaufman, rh Gerald
Keen, Alan (Feltham)
Keen, Ann (Brentford)
Kelly, Ruth (Bolton W)
Kemp, Fraser
Key, Robert (Salisbury)
Khabra, Piara S.
Kidney, David
Kilfoyle, Peter
King, Ms Oona (Bethnal Green & Bow)
Kirkbride, Miss Julie
Knight, Jim (S Dorset)
Kumar, Dr. Ashok
Ladyman, Dr. Stephen
Laing, Mrs Eleanor
Lait, Mrs Jacqui
Lammy, David
Lansley, Andrew
Lawrence, Mrs Jackie
Laxton, Bob (Derby N)
Lazarowicz, Mark
Leigh, Edward
Lepper, David
Letwin, rh Oliver
Levitt, Tom (High Peak)
Lewis, Dr. Julian (New Forest E)
Liddell, rh Mrs Helen
Liddell-Grainger, Ian
Lidington, David
Lilley, rh Peter
Linton, Martin
Lloyd, Tony (Manchester C)
Loughton, Tim
Lucas, Ian (Wrexham)
Luff, Peter (M-Worcs)
Luke, Iain (Dundee E)
Lyons, John (Strathkelvin)
McAvoy, Thomas
McCabe, Stephen
McCartney, rh Ian
McDonagh, Siobhain
MacDonald, Calum
MacDougall, John
McFall, John
McGuire, Mrs Anne
McIntosh, Miss Anne
McIsaac, Shona
Mackay, rh Andrew
McKechin, Ann
McKenna, Rosemary
Maclean, rh David
McLoughlin, Patrick
MacShane, Denis
Mactaggart, Fiona
McWilliam, John
Mahmood, Khalid
Mallaber, Judy
Mandelson, rh Peter
Mann, John (Bassetlaw)
Maples, John
Marsden, Gordon (Blackpool S)
Martlew, Eric
Mawhinney, rh Sir Brian
May, Mrs Theresa
Meale, Alan (Mansfield)
Mercer, Patrick
Merron, Gillian
Michael, rh Alun
Milburn, rh Alan
Miliband, David
Miller, Andrew
Mitchell, Andrew (Sutton Coldfield)
Moffatt, Laura
Mole, Chris
Moran, Margaret
Morgan, Julie
Morley, Elliot
Moss, Malcolm
Mountford, Kali
Mullin, Chris
Munn, Ms Meg
Murphy, Jim (Eastwood)
Murrison, Dr. Andrew
Naysmith, Dr. Doug
Norman, Archie
Norris, Dan (Wansdyke)
O'Brien, Bill (Normanton)
O'Brien, Stephen (Eddisbury)
O'Hara, Edward
Organ, Diana
Osborne, George (Tatton)
Osborne, Sandra (Ayr)
Ottaway, Richard
Owen, Albert
Page, Richard
Palmer, Dr. Nick
Paterson, Owen
Pickles, Eric
Pickthall, Colin
Pike, Peter (Burnley)
Plaskitt, James
Pollard, Kerry
Pond, Chris (Gravesham)
Pope, Greg (Hyndburn)
Portillo, rh Michael
Pound, Stephen
Prentice, Gordon (Pendle)
Primarolo, rh Dawn
Prisk, Mark (Hertford)
Prosser, Gwyn
Purnell, James
Quin, rh Joyce
Quinn, Lawrie
Randall, John
Rapson, Syd (Portsmouth N)
Raynsford, rh Nick
Redwood, rh John
Reed, Andy (Loughborough)
Reid, rh Dr. John (Hamilton N & Bellshill)
Robathan, Andrew
Robertson, John (Glasgow Anniesland)
Robertson, Laurence (Tewk'b'ry)
Robinson, Geoffrey (Coventry NW)
Roe, Mrs Marion
Rooney, Terry
Rosindell, Andrew
Ross, Ernie (Dundee W)
Ruane, Chris
Ruddock, Joan
Ruffley, David
Russell, Ms Christine (City of Chester)
Ryan, Joan (Enfield N)
Salter, Martin
Sarwar, Mohammad
Savidge, Malcolm
Sayeed, Jonathan
Selous, Andrew
Shaw, Jonathan
Sheerman, Barry
Shephard, rh Mrs Gillian
Shepherd, Richard
Sheridan, Jim
Shipley, Ms Debra
Short, rh Clare
Simmonds, Mark
Simon, Siôn (B'ham Erdington)
Simpson, Keith (M-Norfolk)
Singh, Marsha
Smith, rh Andrew (Oxford E)
Smith, rh Chris (Islington S & Finsbury)
Smith, Jacqui (Redditch)
Soames, Nicholas
Soley, Clive
Southworth, Helen
Spellar, rh John
Spicer, Sir Michael
Spink, Bob (Castle Point)
Spring, Richard
Squire, Rachel
Stanley, rh Sir John
Starkey, Dr. Phyllis
Steen, Anthony
Stevenson, George
Stewart, David (Inverness E & Lochaber)
Stewart, Ian (Eccles)
Stinchcombe, Paul
Strang, rh Dr. Gavin
Streeter, Gary
Stringer, Graham
Stuart, Ms Gisela
Sutcliffe, Gerry
Swire, Hugo (E Devon)
Syms, Robert
Tami, Mark (Alyn)
Tapsell, Sir Peter
Taylor, rh Ann (Dewsbury)
Taylor, Dari (Stockton S)
Taylor, David (NW Leics)
Taylor, Ian (Esher)
Taylor, John (Solihull)
Taylor, Dr. Richard (Wyre F)
Taylor, Sir Teddy
Thomas, Gareth (Clwyd W)
Tipping, Paddy
Todd, Mark (S Derbyshire)
Touhig, Don (Islwyn)
Trend, Michael
Trickett, Jon
Truswell, Paul
Turner, Andrew (Isle of Wight)
Turner, Dennis (Wolverh'ton SE)
Turner, Neil (Wigan)
Twigg, Derek (Halton)
Tynan, Bill (Hamilton S)
Tyrie, Andrew
Walter, Robert
Ward, Claire
Waterson, Nigel
Watkinson, Angela
Watson, Tom (W Bromwich E)
Watts, David
White, Brian
Whitehead, Dr. Alan
Whittingdale, John
Wicks, Malcolm
Widdecombe, rh Miss Ann
Wiggin, Bill
Willetts, David
Williams, rh Alan (Swansea W)
Williams, Betty (Conwy)
Wills, Michael
Wilshire, David
Winterton, Ann (Congleton)
Winterton, Ms Rosie (Doncaster C)
Woolas, Phil
Worthington, Tony
Wray, James (Glasgow Baillieston)
Wright, Anthony D. (Gt Yarmouth)
Wright, David (Telford)
Wright, Tony (Cannock)
Wyatt, Derek
Yeo, Tim (S Suffolk)
Young, rh Sir George

Tellers for the Noes:

Charlotte Atkins and
Ms Bridget Prentice

Question accordingly negatived.

12 Nov 2003 : Column 336

It being more than one hour after the commencement of proceedings, Mr. Deputy Speaker, proceeded to put forthwith the Question necessary to conclude proceedings, pursuant to Order [this day].

Lords amendment No. 2 agreed to.

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