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Lord Evans of Temple Guiting: My Lords, I am unable to accept Amendment No. 24 for the following reasons. Clause 1(9) makes it a duty of a fire authority to comply with a direction. The amendment would provide that only the Secretary of State could bring an action before the courts to enforce that duty.

It is, of course, the Secretary of State who is likely to have the greatest interest in enforcing such an order. But, as my noble friend Lord Rooker explained in Grand Committee, it does not take a great deal of

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imagination to think of others who might have an interest in ensuring that a direction is acted on. For example, if a direction were to require one fire authority to make facilities available to another fire authority or some other body, that other fire authority or other body might want to enforce it. So I cannot support the noble Lord's attempt to prevent such action being taken. For that reason, I invite the noble Lord to withdraw his amendment.

Lord Wedderburn of Charlton: My Lords, before my noble friend sits down, he says that anyone who is likely to suffer damage from the breach of a statutory duty created by the Bill should have a right to bring action in the courts. Since inducement of a breach of a statutory duty is a parallel wrong, if not a more grievous one, to a breach of a statutory duty itself, he presumably applies the same logic to inducing a breach of statutory duty. He does not know.

Lord Evans of Temple Guiting: My Lords, this is Report stage.

Lord McCarthy: My Lords, I take it that the Minister is not going to reply to that point, and that I must decide what to do. Even if they do not accept our amendment—I know that they will not—I am sorry that the Government cannot explain why. I am not trying to be unfair, but I think that I am right in saying that virtually everything that the Minister said was said by the noble Lord, Lord Rooker, in Committee.

We are asking not only why the Government have not said in the Bill what the responsibilities are, and who they think will be able to enforce the Bill, but for an idea of how they think it will work, instead of throwing it to the courts. And they say nothing. They just say, "Oh well, the fundamental impetus will come from the Secretary of State, but an authority will have an interest in this" and then everything evaporates.

We still do not know whether it is the Government's intention—and, if so, the extent to which it is their intention—to extend the liability of workers in the industry and their union. It will all come out. Somebody will bring an action and we shall find out. But the Government do not advance in any way. Once again, therefore, I must beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

10.15 p.m.

Lord Wedderburn of Charlton moved Amendment No. 25:

    Page 2, line 29, at end insert—

"(9A) An act done in contemplation or furtherance of a trade dispute which is not otherwise actionable in tort by reason of Part V of the Trade Union and Labour Relations (Consolidation) Act 1992 (c. 52) (industrial action), shall not be actionable in tort on the ground only—
(a) that it constitutes a breach or contravention of, or non-compliance with, an order made under this Act, or
(b) that it constitutes, or threatens, an inducement of, or agreement or combination to commit, any such act.

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(9B) In subsection (9A) an "act" includes a deliberate failure to act."

The noble Lord said: My Lords, this amendment follows directly on the debate that we have just had. Except for Third Reading, this is the last moment at which the impact of the Bill on the liberty of the union and its members to take industrial action can be tested. We know that the official Opposition do not think that the union should have any right to strike—that was confirmed in Grand Committee—so they must be very happy if they understand the Bill.

The Government say that they do not intend the Bill to have any effect on the right to take industrial action. However, there is a simple point that should give them pause and which is a problem for them in the face of that proposition. I can do no better than to put the point in the form of brief quotations from Lord Denning, then Master of the Rolls, in Meade v Haringey Borough Council [1979]—the case that I mentioned in relation to the last amendment and which always causes some merriment on the Government Front Bench because they know its title but not much about its content. In that case, the union had brought school caretakers out on strike, which caused a breach of statutory obligations of the local council under the Education Act.

Lord Denning said that there was a difference between inducing a breach of contract—which invariably takes place in industrial action and which, if there is a trade dispute and a ballot under the provisions of the 1992 Act is protected—and, on the other hand, an inducement of a breach of statutory duty, which, ballot or no ballot, trade dispute or no trade dispute, is not protected by the legislation on the statute book at the moment. Lord Denning said that the legislation,

    "gives them [the union] immunity if they induce a person to break a contract. But it gives them no immunity if they induce a local authority to break its statutory duty".

Replace the words "local authority" with "fire authority" and we have this case.

A paragraph later, Lord Denning said:

    "There is another way of putting the case".

Lord Denning invariably had another way of putting his case. He continued:

    "Now seeing that it was a breach of statutory duty (for the schools to be closed) this agreement was nothing more nor less than an agreement to do an unlawful act, or at any rate to use unlawful means. Such an agreement, if it results in damage to anyone, is an actionable conspiracy",

which, he explained, would also not be protected by legislation.

There has been some commentary on the judgment of Lord Denning on other matters relating to Meade v Haringey Borough Council, but I know of no other authority that has doubted those propositions of law, except the Government Front Bench. Their answer has invariably been that that is not their intention. It may not be their intention, but it is their Bill. Therefore, Amendment No. 25—in respect of which I also speak to Amendment No. 26—would ensure that it is made absolutely clear, once and for all, to cure any doubt—and there is not much doubt about the matter in the judgment of Lord Denning—that this new set of

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statutory duties, created by the Bill, however they are to be enforced, do not create an illegality that creates an obstacle to the legality of industrial action when there is a trade dispute and when there have been the necessary ballots and notice procedures under the 1992 Act.

There was some debate in Grand Committee about whether our amendments were properly drafted or caused doubt about creating a right to strike without ballots and without a trade dispute. These amendments do not allow any reasonable person to make that point. They make it clear that we are talking about industrial action that is protected under Part V of the 1992 Act or is not actionable under the 1992 Act because there is a ballot and because there is a trade dispute. Where those things are so, the union, having pursued all the necessary procedures and established the arguability of a trade dispute, should not suddenly confront a new illegality such as the illegality pronounced by Lord Denning and in other cases that were mentioned in Grand Committee and elsewhere, which, I hope, the Government have read by now. That illegality is inducing a breach of statutory duty. That is not covered by the legislation that protects the liberty and right to take strike action.

The Government must face the fact that, at the least, the Bill is ambiguous. They cannot deny that it creates statutory duties; we have just seen that they think that all statutory duties should be enforced by anyone who is likely to suffer damage or can establish an arguable case. I remind your Lordships that an interim injunction can be obtained from the High Court, where the balance of convenience and public interest is in favour of the claimant and his case in law is not proven but is only arguable, under the decision in American Cyanamid Co v Ethicon Ltd, which was decided by your Lordships' Judicial Committee in 1975.

In the face of that, how can the Government deny that there is the risk of a problem with a claimant who wishes to get—and, given a suitable brief, he has a chance of success—an injunction from the High Court against industrial action that can be said arguably—only arguably—to induce a breach of one or other of the statutory duties under the Bill? Of course, there may be an inducement to breach of contract, which would be protected, but there was a breach of contract protected with regard to the inducement of school caretakers in Meade v Haringey Borough Council. That was not enough to protect the union, although, in the discretion of the court, procedural problems came to the rescue in the end as regards the issue of an injunction for matters that are not relevant to the present argument. It was not enough because they had induced a breach of statutory duty.

The Government have already admitted that claimants all over the land, from Tunbridge Wells to Harwich, could bring an action in order to get an injunction to enforce the duties. As I said to the Minister—he did not answer because, I think, he could not—that obviously also applies to inducement to

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breach of statutory duty, as the Court of Appeal held in 1979 and as has been supported by decisions in the High Court and superior courts ever since.

That is the case for the amendment. That is why, if it is rejected, the Fire Brigades Union and other public service workers will have the greatest fear of the consequences of a train of thought that, so far, has dominated the obdurate resistance of the Government to facing that simple case. I beg to move.

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