|Previous Section||Back to Table of Contents||Lords Hansard Home Page|
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 dothey 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 amendmentsparticularly not in Amendment No. 41to put into the Bill some sort of protection for fireworkers that other employees do not have.
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 repeatedlyand it is on the record, in Hansard, although I have not brought chapter and verse with methat the Bill does not touch on the ability of firefighters to take industrial action.
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 strikeit 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 goodthe 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 Serviceand neither can the Government.
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 goodand 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 helpfuland sometimes notin 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 lawI am sorry to be a lawyer speaking about the law but I have no alternativethat 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 gothey are a great joy to havebut 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:
We keep hearing what the Government intend. That will not be necessarilyor, indeed, in this case, probablywhat 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.
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 publicwhich is a term of artor 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 generallyusually referred to as economic torts, conspiracy, intimidation, inducing breach of contract and interference with trade or other rights by unlawful means. He said:
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,
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,
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 pointit 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  1 WLR 939, the Court of Appeal granted an injunction against the dock strike of 1989. It was granted on the basis that
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  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:
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.
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.
Back to Table of Contents
Lords Hansard Home Page