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Lord Campbell of Alloway: With respect, the amendments are revising the Bill in a very effective way, because they alter the whole scheme of implementation. They pre-empt an interpretation of

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the common law decisions that favours their point of view and opposes the Government's. They are fundamentally revising the provisions related to the Bill.

Lord Rooker: Well, that is my fault for not being a lawyer. The Lord Chancellor has been on his feet on the Floor of the House saying that judges should not be part of this place. There is an argument that lawyers should not have anything to do with making the law and that they should leave it to us lay people, who use common sense. I did not bring my dictionary with me today, but I would have thought that the word "revise" did not mean root and branch rewriting of the fundamental principles. That is what the amendments would do—they would frustrate the operation of the Bill. To that extent, they do much more than revise, and that is how I have used the term.

Baroness Turner of Camden: The Minister said that we were seeking extra protection that was not available to other employees. Amendment No. 41 makes specific reference to that section of TULRA that relates only to protected strike action. In other words, we are not seeking in the amendments—particularly not in Amendment No. 41—to put into the Bill some sort of protection for fireworkers that other employees do not have.

Lord Rooker: With respect, I have not dealt with Amendment No. 41 yet.

Baroness Turner of Camden: No, but the amendments are grouped together.

Lord Rooker: Yes, my noble friends grouped them together. The point made by the noble Baroness applies to what I have just said about the other amendments. There would be a protection. I am being really shorthand, and I know that this is only fourth form, but it would mean that people could go on strike and have a dispute without a ballot, and that they could do it with immunity. That is more or less the import of Amendments Nos. 34 and 35. Because the Bill applies only to the Fire Service, the firefighters would get those powers. That is a short way of putting it, and I realise that it would not get many marks out of 10, but it is what would happen in common sense.

Amendment No. 41, like other amendments to which we shall come later, seeks to extend the protection available under TULRA. My noble friends are of the view that the amendment is required to afford the same protection to individual members of staff who breach an order or to anyone inducing such a breach. We have said repeatedly—and it is on the record, in Hansard, although I have not brought chapter and verse with me—that the Bill does not touch on the ability of firefighters to take industrial action.

Lord McCarthy: You cannot say that.

Lord Rooker: Well, I am saying it. That is our position, and it is what has been said from the day when the Deputy Prime Minister made it clear in

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another place. We are not attacking the right to strike—the Bill is not about that. In fact, there is a discussion of that matter in the White Paper. We have no plans to attack, undermine or weaken the right to strike, as currently set out in the law. I am just about to make that position abundantly clear in respect of Amendment No. 41, because it is unnecessary.

We have made our position clear. The Bill is not about the right to strike; it is about giving the Secretary of State the ability to deal with any further dispute by removing the cause of the argument. If people do not like what the Secretary of State does and have a ballot under the law, as required, and go on strike, there is no problem. However, the first two amendments appear to get round that position by avoiding the need for a ballot. The fact is that, under the law as it stands, if a ballot takes place in further trade disputes, the protection will be there. Therefore, Amendment No. 41 is unnecessary in the sense that it puts on the statute book something that is already there. We do not want to affect the right to strike—it is not part of the Bill. Amendment No. 41 asks us to do something that is not required. People are already protected under the existing law.

If the Secretary of State makes the orders under Clause 1(1)(a), they immediately become part of the terms of conditions of the staff, and the union does not like them and decides to ballot its members on whether to take industrial action to protest against the order, the resulting industrial action would constitute a trade dispute. They have had a ballot, so they can go on strike. Therefore, Amendment No. 41 is unnecessary.

I hope that I have clarified our position for my noble friends. We are not seeking to attack the right to strike, and Amendments Nos. 34 and 35 would go to the heart of ripping out the purpose of the Bill and frustrating it. We do not think that that is very good—the Government could not support it. Amendment No. 41 is simply not required because the rights are already there and protected.

Lord McCarthy: Let me try again. I said that the Government could not say that the Bill did not give rise to liabilities because they are making a statement about the future. I did not say that they intended that. My noble friend and I are asking the Government to tell us that they do not intend that, and that they will do something if they turn out to be wrong.

The Government are making a statement about the future. In 1875, in 1906, in 1961, in 1974 and 1999, the relevant authorities told us that it was safe. They did not intend to increase the liabilities on trade unions and their members; indeed, they intended to make industrial action lawful. They meant that at the time, but it is impossible to say what the common law will do or what the judges will do. We might have an idea, but we cannot talk about the precise way or case that would transfer the liabilities to the Fire Service—and neither can the Government.

We are not attacking the Government's bona fides. We are saying that that is possible, if the future resembles the past. My noble friend Lord Wedderburn

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says that he has concrete cases in which the past has resembled what we fear in the future. Why will the Government not tell us that, if that is how matters turn out, they will take immediate action to set the provisions aside, because they do not intend for that to happen?

4.30 p.m.

Lord Wedderburn of Charlton: This is not easy, because I have been challenged as advancing false propositions of law, so I have to make them good—and I shall. Before I do so, I must say that this new doctrine that lawyers should have nothing to do with making the law is not one to which I subscribe. In making the law, noble Lords should consider the law as it is. Sometimes lawyers who have spent 50 years with a subject may be helpful—and sometimes not—in explaining the effect that it might have on a misplaced provision or absence of provisions in a Bill.

Amendments such as all three of those to which the Minister spoke, which refer to what should happen by reason of the Act, are hardly a programme for general law reform. Nor is it true that they are, in a sense, out of order because they are not relevant to the Bill or they frustrate it. I am trying to secure one very simple proposition. I am trying to secure in law—I am sorry to be a lawyer speaking about the law but I have no alternative—that what the Government say they intend is reflected in the Bill. At present, it is not.

Your Lordships have the Law Lords in the premises at present, instead of their being in a new supreme court, which will be the case in the near future. I greatly welcome that, not because I want to see them go—they are a great joy to have—but because the noble and learned Lords are your Lordships' Appellate Committee as the highest court in the land. It just so happens that last week, on 11th July, the Law Lords delivered a unanimous, very important decision in the case of Wilson v First County Trust (No. 2) in the House of Lords. The noble and learned Lord, Lord Hutton, gave the opinion. Without going into the detail, the question, among others, was the extent to which ministerial pronouncements and other similar pronouncements were useful in interpreting Acts of Parliament. I shall read the whole text if the noble Lord wishes, but I am certain that the following is relevant and not out of context. The noble and learned Lord, Lord Hutton, said:

    "The occasions when resort to Hansard was necessary . . . would seldom arise. The present case was not such an occasion. Courts had to be careful not to treat the ministerial or other statements as indicative of the objective intention of Parliament nor give a ministerial statement determinative weight. It should not be supposed that members [Members of Parliament] generally agreed with the minister's reasoning or his conclusions".

We keep hearing what the Government intend. That will not be necessarily—or, indeed, in this case, probably—what the courts see as the intention of Parliament. Ministers are not Parliament. They may take powers to make orders determining rights, but what your Lordships decide should go into the Bill will be construed by the courts as determinative of what is Parliament's intention.

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Mr Justice Laddie, in Michaels v Taylor Woodrow [2001] Chancery Report 582, said:

    "the courts are trying to implement the presumed intention of Parliament. If Parliament has considered the question 'what relief should be available to a person harmed by breach of this legislation?' and has furnished an express answer, it is not for the courts to legislate other forms of relief . . . If no relief is specified then the court again has to decide what was the legislative intent. It may be that, from a consideration of the whole of the Act and the history of the legislation, the legislative intent is found to be not to give any rights of action to harmed individuals at all. But where no relief is specified the court may be more willing to assume that the legislative intent was that the common law should provide a cause of action".

Although I am not entirely clear, as I understand it, the Minister was saying, "Yes, some kind of remedy should be provided by those harmed by a breach of duty under the Act", whether it is a breach of duty of a fire authority, which we debated in the previous Committee sitting, a breach of duty on the part of members of the fire brigade, or—and this is the most important—a breach caused by an inducement of a breach of statutory duty by a union or indeed any other person.

That is why the Bill as it stands raises the issue of breach of statutory duty. Breach of statutory duty is a form of unlawful means. There is a technical issue on the case law, which I shall try to summarise in a sentence without citing. The issue, which is not difficult to understand, is whether a breach of a statutory duty is of a duty that is immediately remediable by a person affected as a class of the public—which is a term of art—or whether it is not immediately remediable by the person damaged but simply stands, in a sense, by itself. The question, therefore, of whether a narrow or wide meaning is given to unlawful means in the sense of breach of a statutory duty is of central relevance and issue to the case and the Bill. With the greatest respect, the Minister's reply did not understand the case. Although inferentially he gave an answer, he did not tell me clearly whether a breach of duty by a fire brigade member, a union or a fire authority is meant to be a directly remediable breach of statutory duty.

There are so many decisions on the matter that it is difficult to know which to cite. Since I must do so, I shall first cite Michaels v Taylor Woodrow Developments Ltd., where Mr Justice Laddie, in 2001, summarised many, many of the past authorities. I think that in that case he cites around 12 leading authorities, which I hope the Minister's advisers have read. If they have not, what is the point of having advisers? I would hope that the Ministers would read it. Mr Justice Laddie said in that case that many torts are involved in the problem of breach of statutory duty and unlawful means generally—usually referred to as economic torts, conspiracy, intimidation, inducing breach of contract and interference with trade or other rights by unlawful means. He said:

    "There is much to commend the suggestion that the principles which apply to economic torts should be consistent with each other. After all, these are creations of the common law and it is difficult to see why, for example, an unlawful act which is sufficient to ground a cause of action for unlawful interference with trade should not also be sufficient to ground an action for unlawful means conspiracy and conversely why an unlawful act,

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    if any, which is insufficient to support one should not also be insufficient to support the other. If different types of unlawfulness will support different common law causes of action it would give rise to a degree of obscurity in the law which serves no useful purpose. The point is made particularly clearly in Clerk & Lindsell on Torts, 17th ed (1995), para 23-61: 'Since the four species of tortuous liability, intimidation, indirect procurement of breach contract, conspiracy to use unlawful means, and unlawful interference, all depend upon proof of an illegal or unlawful act threatened or employed by the defendant, it would make for brevity, logic and elegance if the principle could be stated that the definition of "illegal" or "unlawful" was the same under all four rubrics. The reason for the requirement is clearly the same in all four cases'".

He then says that, unfortunately, as the book says, that is not clear in the case law. I must declare an interest immediately, as that judicially approved citation was from a chapter that I have edited for 40 years. I am happy to agree with the learned judge. He then quotes other cases that say the same. So, as he puts it, everything depends on what is meant by unlawful means. Does that include the wide meaning—any and every illegality—or does it mean only a very narrow interpretation, especially on statutory duties?

In Williams v Department of Transport, in The Times Law Reports, 7 December 1993, and the Court of Appeal (Civil Division) Transcript No. 1382 of 1993, Lord Justice Dillon and his brother Lord Justices faced the case where protestors had held up construction of a bypass over Twyford Down. Members of the Committee may remember the case. Protestors had interfered with the construction of the bypass being engaged upon under statutory powers. Their actions were said to be breaches of orders and regulations under the Highways Act 1980. Lord Justice Dillon recorded the defendants' counsel as accepting that,

    "injunctions to be granted for the tort of wrongful interference with business if the appellants interfered with the plaintiffs' activities by unlawful means. But . . . they do not accept that section 303 automatically renders any wilful interference illegal, because section 303 merely provides for a fine".

In other words, that was the issue in the case. He concluded:

    "I accept [the] submission that an injunction founded on the tort of wrongful interference with business can be granted if Mr Ward interferes with the plaintiffs' motorway building activities and ancillary activities by unlawful means . . . by virtue of section 303 any wilful interference is unlawful, and, in my judgment, constitutes unlawful means for the purposes of the tort".

He then cites another two House of Lords cases, from 1949 and 1982, and concludes:

    "The claim is founded on a recognised tort at common law, just as the claim in trespass is, and anything which is illegal under any statute provides the unlawful means".

Anything which is unlawful under any statute provides the unlawful means. On that basis, an injunction can be granted. Not only that, even if Lord Justice Dillon were wrong ultimately as it is found in this dispute about exactly what are unlawful means, on which there is a vast literature, it will not be finished in two years. For the next two years, the question is a live one. Illegal means is arguably based upon anything which is illegal under any statute.

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Members of the Committee will remember that, at the previous sitting, I submitted that all you have to do to get an injunction, where the balance of convenience in the eye of the court is in your favour, is prove that you have an arguable case. Lord Diplock called it,

    "a serious issue to be tried".

Is the Minister, his advisers or anyone telling me that when it is common ground between us that it would be illegal to defy an order under the Act, and that it would be unlawful to refuse to work? I believe the Minister gave the example of shift patterns, where the order says "You will work those shift patterns" or "You will move this appliance from one station to another", but feeling on the ground is so high that people refuse. It could be that they appeal to their union officers and the officers say that they are supporting their members. In that situation there is a threat or actual breach of the order. That is illegal. It is a breach of a statutory duty, which we hope to imply into a contract, because if it were a breach of contract duty then there would be protection under Section 219.

I break off to refer to the opening words of Amendment No. 134. The Minister made a particular point, saying that the opening words,

    "An act shall not constitute an unlawful act or unlawful means for the purposes of the law of tort by reason only that it is . . . a breach . . . of . . . this Act"

were not relevant to the Bill. The whole point of the legality of industrial action rests upon three things: first, whether it is wrongful at common law; secondly, whether the Trade Union and Labour Relations (Consolidation Act 1992 protects it—largely in Section 219—and, thirdly, whether all the other procedures have been complied with.

I wish to make the following point as briefly as I can. The Minister raised what I can only regard as the quite mystifying argument that somehow all three of our amendments displace requirements for ballots. They were improperly understood; they do not. It is true that Amendment No. 41 mentions them because I thought that the Minister would raise the point—it is the usual point that people make. Our amendments say nothing at all about displacing obligations for ballots. If noble Lords would like actually to read the amendments instead of talking about them they will see that that is the case. I cannot stress that strongly enough. The idea that this is some conspiracy to avoid ballots is so wrong that it defies words.

I have one further authority to refer to. I am sorry to refer them to Members of the Committee, but if you want to discuss the law, you had better discuss the law and make good law. It is quite clear that an injunction can be obtained on the grounds that I have submitted. In Associated British Ports v TGWU [1989] 1 WLR 939, the Court of Appeal granted an injunction against the dock strike of 1989. It was granted on the basis that

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the union had taken action to call the strike which infringed the obligations of dock workers under the dock works regulations.

The Court of Appeal accepted that the dock works regulations gave no right to the employers to sue for mere breach, but because there would be a breach of statutory duties, this would be unlawful means. All three members of the Court of Appeal accepted the general proposition put forward by Lord Justice Denning, as he then was, in Daily Mirror v Gardner [1969] 2 QBR 762 where he stated that if one person deliberately interferes with the trade or business of another and does so by unlawful means, an act he is not at liberty to commit, he is acting unlawfully even though he does not procure any actual breach of contract, and went on to say that an injunction would be granted against him. Were I submitting the case in full there would be a large number of other authorities, which in the past five years have accepted and applied that principle.

I want to conclude by saying that that is my case on the law. We are making law so it would be useful to attend to what the law is. I appreciate that the Government have reached this curious conclusion that it is impossible for them to be wrong when they say that their Bill does not threaten the legality of strikes. It would be more useful if they attended to Cromwell's great cry:

    "I beseech you, in the bowels of Christ, think it possible you may be mistaken".

The case against them is very strong. I have cited the authorities. If I have missed out authorities which are relevant to the case, I would be happy to consider them either now or at any future time.

Amendment No. 35 is an inferior alternative to Amendment No. 34, and Amendment No. 41 is not the best way of doing things. So, if we take a stand on anything, it is largely on Amendment No. 34, but there are alternative words which could be considered in those other amendments. We have seen that the union will not be granted a chance of arbitration, or its members. We have dealt with arbitration in previous amendments. If they object to the terms of an order made after consultation with the National Joint Council they will not be granted any third party assistance. The Minister, the Secretary of State, will impose the order. If they offend it or induce the offence of it they will be acting illegally. On the basis of that an injunction could be clearly granted, trade dispute or no trade dispute. Of course it may be a trade dispute, but there is no protection against inducing a breach of statutory duty. There is no protection against unlawful means in this form, nor should there be. There should be no general protection for inducing breaches of statutory duties in general. I do not want anyone to have the right to induce a breach of the regulations and statutes about driving dangerously; of course I do not. What I and my noble friends say is that this Act should not extend the range of illegality in industrial disputes against fire-fighters and their union because that is the implication that we see in it at present.

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I have no alternative but to withdraw the amendment, most regrettably. It seems that the Government are not going to—

4.45 p.m.

Lord Rooker: You can withdraw it when I have finished. You can withdraw it when you like, but if I am going to say anything I have to get up before the magic words are uttered, which is why I stood.

To cut a long story short, if an order is issued under the Bill it directly operates on the conditions of service of members of the fire brigade. The conditions of service are altered by the operation of the law immediately the order comes into force. It is therefore impossible to avoid being outside the order or failing to comply with the order because the order is imposed immediately and has an immediate effect on the conditions of service. Once the order comes into force, the fire-fighters' conditions of service are changed at that point. If they do not like it, and a dispute arises and they have a ballot, they are free to strike. That is the end of the story, in a short, common sense way of summing-up.

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