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Lord Campbell of Alloway: I am grateful to the noble Lord. All this legal expertise—Lord Denning and so on—is getting a little tight. Does the noble Lord realise that if these proceedings were on the Floor of the House, one could move that the question be put? But here we are absolutely clobbered. We have no right to divide. Therefore, the noble Lord can go on and on and not give way until it suits him, which is fair enough. But, surely, as a matter of reason, this argument could be condensed with respect and repeated on the Floor of the House where something could be done about it.
Lord Wedderburn of Charlton: If the noble Lord wants to shut me up, he will no doubt take some measure to try to do so. I am trying to put an argument. It is an argument which normally occupies about a quarter of a term's study for those who are interested in the subject. I am trying to put it in 15 to 20 minutes. If the noble Lord does not want me to complete the argument, no doubt he will depart. But I intend to complete the argument on subsequent amendments, which involve matters that I believe the Government have possibly overlooked.
The Government may have overlooked matters of law. I am sorry to argue the matter on the basis of law, but the Committee is making laws. It is not simply engaging in some sixth-form debating society; it is making laws. If Members do not want to know what the laws mean, then they will not argue about them. My points illustrate the simple fact that Parliament does better when it clarifies its intentions, rather than leaving matters silent and making the courts engage in guesswork as to those intentions. That is why I quoted Lord Denning. I did not want to say that on my own authority; I say it on the authority of Lord Denning.
Amendment No. 31 would help in one rather preliminary respect. It specifies that the Secretary of State is to be the claimant for enforcement of Clause 1(8). I may have previously said Clause 1(9). If so, I apologise; it is Clause 1(8). It does not try to specify the exact legal remedies. That would make the Bill much too procedurally technical. The courts can be trusted to find right procedures and remedies once they know what Parliament's intention is on the enforcement of the duty which Parliament has expressly said lies upon particular bodies. Currently, it does not.
Under the amendment, no action would lie for an injunction or order at the instance of a third party. I must be quite clear what the amendment says. Where a fire authority has not obeyed a direction to move appliances—for example, from Shooters Hill to Hampstead—and a station is in consequence inadequately resourced to fight a fire, the home owner who said that his house might be threatened would fail at the first fence in any action he brought if the amendment were adopted, whether for an injunction or for damages in a civil action in tort. He would not be a permissible plaintiff. If the Government want that to be different, they will amend the Bill to say so and state that a third party can enforce the duty set out in Clause 1(8).
There are innumerable other difficult aspects of the problem, which I shall not spell out. Parliament has debated the issue on a number of occasions in regard to other Bills. It is not a new point in legislation; it is almost "first-year" stuff. Where there is a duty, it would be a good thing to set it out. That is especially so with regard to injunctions.
If Parliament means that either the Secretary or State, a third party or both should have a power to apply for an injunction—and I shall explain later why that is so important—then it is particularly important to make clear in the Bill who can sue for what if there is a failure to fulfil the duty. The unlawful conduct in breach of the duty of Clause 1(8) may no doubt be less likely than a failure to comply with some other kind of order. I have only taken it here first because it is a duty of the fire authority. I have no doubt that the Minister will rightly say that the Secretary of State will be able to impose all kinds of pressures on fire authorities to do exactly what the direction says. But there may be—indeed, it is very likely to be—a case in which someone says, "You have not complied with it fully and properly". In that case, who has the right to enforce it, what remedies do they have to enforce it, and would it not be better to say so? I beg to move.
6 p.m.
Lord Rooker: Clause 1(9) is one of the shortest subsections in the clause. The fewer the words, the less likely they are to be confusing. It is fairly clear that there is a duty on a,
- "fire authority to comply with a direction".
On the other hand, if one takes not much of a leap of imagination, one would realise that others might have an interest in enforcing such orders. The order could be, for example, that one fire authority is required to make facilities available to another fire
authority or some other body. That other fire authority—the other body—might want to enforce that. It would be entirely up to it if that were the case. That is the why nothing is said that would stop that happening.I cannot make my reply simpler or shorter than that; we are dealing, as I said, with a fairly short provision. It is conceivable that others might want to enforce the order; that could be another fire authority altogether. Therefore, I cannot accept the amendment.
My noble friend began by referring to the groupings and the fact that he thought that he was due an apology. I do not think that he is due any apology at all; as I understand it, the Clerk in the Chief Whip's Office is still waiting for an apology from him for his conduct and behaviour last Thursday. That is most unfortunate and regrettable.
I cannot accept the amendment because it would be too restrictive.
Lord Wedderburn of Charlton: My noble friend the Minister makes a case to which I shall reply in argument. As for what happened last Thursday, he was not there and I do not know what he knows—or what he thinks he knows—about it.
Lord Evans of Temple Guiting: Will—
Lord Wedderburn of Charlton: I am not giving way. There was an accusation of conduct that was inappropriate. There was no inappropriate conduct. I have written to the Chief Whip about it, who was not there but who appeared after it had happened. I wrote to him but have not yet had a reply. I shall say no more about it now but if my noble friend the Minister wants to use his privilege to make accusations, perhaps I should read what he said last Thursday, since he will not apologise for it. He said:
- "What I said was not taken in good faith".
- "I am not qualifying that.
- When I arrived for work this morning, Amendments Nos. 10 to 13, 33 and 45 were in one group. At quarter past twelve today, they were all separated. So, do not start telling me about changes in the rules of this place. I am new here. My noble friend has been here for donkey's years. If he wants to work in a situation of anarchy, that is up to him. My noble friend was quite in order to speak to Amendment No. 33".—[Official Report, 3/7/03; col. GC 286.]
However, that passage is a plain suggestion of impropriety in the way in which we handled the amendments. I repeat that we did what we have done for 25 years and followed the Companion precisely; I shall read it out if the Minister has not read it. We spoke to the officials in the Chief Whip's Office before 12 o'clock, which was the time agreed for the matter; it has nothing to do with quarter past 12. If he cannot read what has been done by 12 o'clock, that is not my fault. We said that we exercise our choice, if we may,
to take out our amendments from the list issued by the department, which someone had duplicated—it was a draft—and placed in the Prince's Chamber.The draft from a department is for discussion, as the Companion makes absolutely clear, with those who, as my noble friend Lord McCarthy put it previously, are sovereign in their ownership of the groupings of amendments. I appreciate that my noble friend the Minister is used to a Speaker and Speaker's Clerks and so on, but that is a very different procedure. We do not have that procedure. We have what is in the Companion and that is the procedure that we use.
I am very surprised that the Minister will not apologise or retract. Perhaps he is acting on Lord Montgomery's principle of never withdraw. But that is not a good principle in debate when you can read what you said. It is unfair.
I turn now to the more important issue of my noble friend's reply. He referred, quite properly, to Clause 1(9), which states:
- "It shall be the duty of a fire authority to comply with a direction contained in an order under this section".
My noble friend said that the Secretary of State is likely to want to enforce that provision if it is broken and that he has a hell of a good reason to do so. That is what the amendment seeks. He said that those with a keen imagination might consider that others will want to enforce it. One can imagine that kind of situation. We believe that it would be a good thing to restrain litigation on the matter. Where there was a public interest—which is the basis of the Minister's case for the enforcement of the order—it might be a good thing to state that the Secretary of State has to enforce it. If another fire authority wants to enforce it, I imagine it would go to the Secretary of State and state, "Look at what is happening in fire authority X. We want you to tell it to comply with the order".
I do not mind if the Government want third parties to bring actions for injunctions in this matter—but they should say so. That is all we are asking. We drafted the amendment as the best offer we could make to cure one of the silences in the Bill. The Minister said that the reason why nothing is stated—I do not quite understand this point so correct me if I am wrong—is that it leaves the matter open to all kinds of people to bring actions. That is exactly what the courts complain about. They do not know where they stand. They do not know who is allowed to bring an action or what are the precise terms for a third party to bring an action.
I apprehend that the Minister may not be aware of this but when a third party brings an action for an injunction—the Minister may have been referring to this—he will go to court and ask for an interim injunction to stop the fire authority contravening the direction. It is important that the Committee should know what that entails. If any Member of the Committee wishes to interrupt and to tell me exactly what that entails, I shall give way.
Since 1975, an interim or interlocutory injunction in the High Court is not tested by the same test as most cases in civil actions. Until that date, the applicant for an injunction against a union—or, indeed, a fire authority—preparing to take industrial action had to show that there was a prima facie case that the defendants were guilty of some unlawful conduct or combination. In 1975, in your Lordships' Appellate Committee, the Law Lords changed that principle in the case of American Cyanamid v Ethicon [1975] AC 396.
Lord Diplock referred to the matter in this way:
- "The court—no doubt—must be satisfied that the claim is not vexatious or frivolous; in other words, there is a serious question to be tried".
If the Minister gets what he has just suggested and puts it into the Bill, a third party could bring forward a flurry of litigation—not only every time there is some form of illegality, but every time counsel can make an arguable case that there is illegality. At the moment that is in fact the basis of the quite justifiable objection of trade unions to the procedures of a labour injunction in the courts.
Further, in a case that I shall quote in regard to Amendment No. 34, after a prolonged examination of complex case law, an interim injunction was held to require unlawful means—and unlawful means will normally include a breach of statute, to which I shall come later. The noble Lord must understand what he is saying. If he wants third parties to have the right to bring those actions in the courts on the basis of an arguable case, then he is opening the door to enormous possibilities for litigation.
My final sentence is this: this is not a case where a Pepper v Hart assurance will affect the matter. This is a case of what Parliament means, not ministerial assurances, in the Bill that is passed. I say this to each and every Member of this Committee: it is your responsibility to ask what the Bill means, because that will be Parliament's intention. Before I withdraw the amendment, I beg the Minister to consider again to make these silences clear, so that we do not have the enormous number of law suits that inevitably will arise—all lawyers know this perfectly well—if the Government keep the Bill as silent as it is now. I can do nothing but beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
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