Clause 1 — Powers of the Secretary of State

Fire Services Bill – in the House of Commons at 1:54 pm on 12th November 2003.

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Votes in this debate

Lords amendment: No. 1, in page 2, line 1, at end insert "or disposal".

Photo of Nick Raynsford Nick Raynsford Minister of State (Office of the Deputy Prime Minister) (Local and Regional Government) 2:08 pm, 12th November 2003

I beg to move, That this House
agrees with the Lords in the said amendment.

The amendment is intended to clarify the consultation arrangements for directions about property or facilities made under the power in clause 1(1)(b), which allows the Secretary of State to give directions to fire authorities about the

"use or disposal of property or facilities".

As originally drafted, the consultation requirements in clause 1(4) applied only to directions about the "use" of property or facilities. It is and was our intention that the same consultation requirements should apply to all directions under the clause 1(1)(b) power, whatever their content. The Secretary of State would therefore be required "as he thinks fit" to consult persons, or representatives of those persons, who

"are, in his opinion, likely to be affected by the proposed direction".

Concern has been expressed about the possible use of the power to require disposals of assets. In Committee, in response to some strongly expressed concerns, my hon. Friend Mr Leslie, then the Under-Secretary of State, said that the provisions were

"not part of some . . . asset-stripping fire station closure plan".

He went on to remind the House that, as the Bain review highlighted, there were

"all sorts of ways . . . of making savings in the fire service that involve neither selling off nor reducing the facilities available for the protection" of the public,

"nor creating redundancies".—[Hansard, 3 June 2003; Vol. 405, c. 89.]

I want to repeat that we do not intend to use directions under clause 1(1)(b) for asset stripping, some sort of privatisation or a mass fire station closure programme. However, we want to ensure that the proper modernisation of the fire service can be implemented. I fully expect and hope that this can be done without the use of these powers, but that may not be possible. If it is not, we will consult fully, as the Bill requires. I would not want to leave anyone with the impression, however mistaken, that the Government thought that lesser or no consultation was needed for any orders dealing with disposals. Therefore, to ensure consistency between the two connected provisions, we accept that the words "or disposal" should be added to clause 1(4).

Photo of Philip Hammond Philip Hammond Shadow Minister (Communities and Local Government)

Nobody could disagree with the notion that there should be consultation in the case of a disposal, as well as a direction for use. However, I want to place on the record that this was a simple mistake—a word was left out of the Bill's original text, which is the sort of error that we would usually expect to be picked up during a proper Committee stage. That rather underlines the dangers of a rushed process—of taking a Bill through all its stages in one afternoon. It proved possible for it to go to the other place with an important word missing from the text, and for that fact to be overlooked, despite it being scrutinised in this House. I hope that the Minister will take that point on board and consider long and hard before trying to rush through legislation again. We owe a debt of gratitude not to Government Front Benchers, but to the noble Baroness Turner, who picked up this error from the Back Benches.

Photo of Edward Davey Edward Davey Shadow Spokesperson (Office of the Deputy Prime Minister), Liberal Democrat Spokesperson (Office of the Deputy Prime Minister)

I, too, accept the Minister's emollient statement that this is a minor amendment, but it will be important to ensure that any consultation required under the Bill is full in respect of all of the proposed changes. It is worth placing on the record that the amendment does not make the Bill any better; overall, it is ill thought through and unnecessary. Although the Minister may say that the current impasse or delay in the negotiations justifies the Bill, the fact that both sides are negotiating suggests that it and the amendment are not needed. It is worth pointing that out, given what is happening outside this place.

Lords amendment agreed to.

New clause

Lords amendment: No. 2, after clause 1, to insert the following new clause—Interpretation of the June 2003 agreement

'For the avoidance of doubt, nothing in this Act affects the possibility of the parties agreeing on a reference to mediation, conciliation or arbitration on the interpretation of the June 2003 agreement between the Fire Brigades Union and the local authority fire service employers.'

Photo of John Martin McDonnell John Martin McDonnell Labour, Hayes and Harlington

I beg to move amendment (a) to the Lords amendment, in line 6, at end, add

'or enables an action in tort on the ground only that it contravenes a statutory duty imposed by an order made under this Act, which would affect the possibility of mediation, conciliation or arbitration.'

Photo of Sylvia Heal Sylvia Heal Deputy Speaker

With this we may discuss amendment (b), in line 6, at end, add

'or enables the local authority fire service employers to impede the possibility of a reference to mediation, conciliation or arbitration by pursuing an action in tort on the ground only of contravention of a statutory duty imposed by an order made under this Act.'

Photo of John Martin McDonnell John Martin McDonnell Labour, Hayes and Harlington

I begin by preparing the background to the amendment. Lord Lea moved amendment No. 2 as an avoidance-of-doubt clause because he was anxious to clarify in the Bill that nothing stands in the way of mediation. In other correspondence, the Minister has made it clear that such clauses are seen by Governments as clearly helpful, if not regular. They are helpful in avoiding any future misconstruction of the Bill by including in it an explicit statement as to its intent. I agree with, and support, this type of clause in principle.

The purpose of my amendment is to seek to extend the avoidance-of-doubt clause to clear up—helpfully, I hope—a further doubt that entered into the debate after the Bill left the Commons and went to the other place. It is a straightforward amendment that explicitly overcomes that doubt, and it reflects the Government's intentions as stated in correspondence with Members of the other House and also in the debate in that House.

That doubt was expressed in the other place at various stages by the noble Lords Wedderburn and McCarthy and by Baroness Turner. Those of us who have had any dealings with industrial relations and the related law during the past 30 years appreciate that Lords Wedderburn and McCarthy and Baroness Turner expressed a view on this subject that is based on decades of experience, and it comes from those who are the most qualified to express such a view. In fact, many in this House learned their industrial relations law at the feet of Lord Wedderburn, as an expert practitioner.

The doubt expressed by those Lords is set out in a briefing note prepared by Lord Wedderburn, Professor Emeritus of commercial law at the London School of Economics, which was published on 1 November. I tried to place this note in the House of Commons Library, but I was informed that only Ministers or Mr. Speaker may do so. However, I have copies available in my office if Members wish to peruse the note.

Photo of Philip Hammond Philip Hammond Shadow Minister (Communities and Local Government) 2:15 pm, 12th November 2003

The hon. Gentleman has set out the credentials of the noble Lords who first raised this issue as amendment No. 3 in the other place. As the Government refuted their case entirely, can he tell the House whether he believes that the Government are simply poorly advised by their legal advisers or are being duplicitous?

Photo of John Martin McDonnell John Martin McDonnell Labour, Hayes and Harlington

I am trying to create a climate in this debate that is not confrontational. Doubt exists. The Government's advisers are not duplicitous or in any way incompetent; they simply have a view. The noble Lords, who have vast experience in these matters, have another view, and that leads to doubt. The situation is no more contestable or challengeable than that. This is not an "in your face" allegation.

Photo of Edward Davey Edward Davey Shadow Spokesperson (Office of the Deputy Prime Minister), Liberal Democrat Spokesperson (Office of the Deputy Prime Minister)

Is the hon. Gentleman saying that his amendment would simply clarify what Ministers say is already the position, and that it would therefore be helpful to include it in the Bill?

Photo of John Martin McDonnell John Martin McDonnell Labour, Hayes and Harlington

That is exactly the purpose of the amendment, and nothing more. It is designed to take the Government's intention as stated in ministerial statements and enact it in the legislation.

I shall explain the doubt that I described. On 30 June 2003, the Lords warned that the terms of the Bill contained a threat to the right of firefighters and the FBU to take lawful industrial action. This was not an intended threat by the Government—a point made explicit by the Secretary of State and the Minister—but it is a possible threat. The TUC has also expressed this concern. The Lords argued that the Bill contains provisions that could enable a claimant to obtain an injunction against a strike, or the threat of a strike, by the FBU, even in a trade dispute in which all legal requirements, such as a ballot, had been fulfilled. Why is that so? I shall answer that by referring to what I shall describe as the Wedderburn doctrine. In the UK, there is no explicit right to strike, but trade unions are now afforded certain immunities in law. Under part V of the Trade Union and Labour Relations (Consolidation) Act 1992, trade unions are protected in a trade dispute, and after a ballot, from actions on the basis of a breach of contract. That provision was inserted into law by Sir Charles Dilke, a well-known liberal progressive, in 1906.

Photo of John Martin McDonnell John Martin McDonnell Labour, Hayes and Harlington

Indeed. The Taff Vale case was part of the instigation of the Labour party's foundation and representation in Parliament.

The problem is that the Court of Appeal, in the case of Meade v. Haringey Borough Council, held that this protection does not apply where the union induces a breach of duty imposed by statute, not by contract. Lord Wedderburn quoted Lord Eveleigh at length in this regard. The union

"may, in proper circumstances, induce others to break a contract in furtherance of a trade dispute, but they are not entitled with impunity to order or solicit a breach of statutory duty."

Lord Denning agreed. He said that the legislation gives the unions

"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."

The Government have contested that point, saying that there is an uncertainty in the meaning of Denning and Eveleigh, but those statements could not have been more explicit. Indeed, although the judgment in that case may have been criticised in the generality, there has been no criticism of the reference to the statutory duty. In addition, that interpretation was even used in the case of R v. The Governors of J School, in 2003.

The new Bill introduces a number of statutory duties. Of the many examples that Lords Wedderburn and McCarthy raised in their briefing for the Lords debate, I shall cite just one that was seized on by Lord Wedderburn. Under clause 1(1)(b), the Secretary of State may

"give . . . directions to fire authorities about the use or disposal of property or facilities."

The fire authority has a statutory duty to comply with the direction contained in such an order. Wedderburn considers the example of a fire station closure and said that firefighters from the station under threat might persuade other firefighters to take industrial action against the closure and the removal of pumps, which threaten public safety and, indeed, jobs overall within the service. It could be after a ballot and it could involve all the members of the FBU nationally. The union, Wedderburn states, would "clearly be at risk" of liabilities

"for inducing a breach of the fire authority's statutory duty to comply with the direction".

Wedderburn further asserts:

"At present it is lawful for firefighters to strike against the closure of stations. Under the new law as the Bill stands it would not be lawful."

What was the Government's response to the noble Lords and Baroness Turner? Doubts were raised when the Bill was first debated on 30 June 2003 and the Government were warned about the problem. The noble Lords pleaded for delay and produced a detailed legal argument, suggesting helpful amendments. No legal argument came from the Government until four months later on 31 October. The response was contained in a letter from the Minister with a 10-page legal note three days before Third Reading.

The first main point in the Government's response was that avoidance-of-doubt clauses are inserted only where doubt exists. I have to say that there is no doubt that there is a doubt on this matter. There is a contested doubt in the Lords from people who have a vast range of experience in industrial relations—they are challenging the Government's legal opinion. When noble Lords with great experience, as well as the TUC, express a doubt, there is a doubt.

The Government also believe that it is "highly unlikely" that a union would not be protected by existing legislation, but highly unlikely is not certainty. The position enables an element of doubt to creep into any future actions. The Minister also stated clearly that the threat to firefighters' right to take industrial action was not present; that was not the Government's intention. I accept at face value the Government's assertion. I believe in the good will behind that statement, but the courts will not necessarily give effect to the intentions expressed by Ministers if those intentions are not enacted clearly in the Bill.

In their note to the noble Lords, the Government relied on the case of Pepper v. Hart 1993, which has enabled ministerial statements to be considered, in limited circumstances, by the court as the background to legislation. However, ministerial statements do not govern the meaning of an Act. Pepper v. Hart enables construction of ambiguous, obscure or absurd statutory provision. In practice, it serves simply to remove ambiguity. Well, that is exactly what my amendment is designed to do—to remove the ambiguity at first stage.

Lord Wedderburn drew Ministers' attention to the more recent case of Wilson v. First County Trust 2003, where the Law Lords again expressed a view on the general application of Ministers' interpretations. The result of that case was explicit: it is the words of the Bill, not the intentions of Ministers, that control the meaning of the Bill itself.

Photo of Kelvin Hopkins Kelvin Hopkins Labour, Luton North

My hon. Friend has talked about assurances from a Minister, which would at least morally bind an existing Government, but they would not necessarily bind a future Government who might be more hostile to trade unionism and take a different view of the legislation than the present Government. Is that not the case?

Photo of John Martin McDonnell John Martin McDonnell Labour, Hayes and Harlington

There are clearly elements of future interpretation of legislation and future ministerial statements that might have some impact, but that is yet to be tested in the courts. It is open to debate, leaving further room for doubt. I shall be quick now, because other. Members want to contribute to the debate.

We have all experienced the danger of doubt in industrial relations in negotiations about individual words, but it is more dangerous in industrial relations when injunctions are flying around. Injunctions against trade unionists taking industrial action are granted in interim proceedings. Most of us who have been involved in trade unions in the past will have had injunctions made against us at the interim stage. It is not only when a claimant, an employer or a third party can prove their case that an interim injunction is awarded, but when a claimant can show an arguable case.

Diplock expressed a test—whether there was a serious question to be tried—which amounts to a different burden of proof for an interim injunction than for a full trial. If there is any doubt that the law is working against the individual union, it will be an arguable case. The arguable case obviously needs to be accompanied by a balance of convenience, and the Government have argued that that balance in many of these issues will rest with the union—but Lord Wedderburn said that he could find not a single case in which the balance of convenience has weighed in favour of a trade union in an interim injunction of this sort.

I shall now return to the real world—with apologies to Lords Wedderburn and McCarthy and Baroness Turner in respect of the legal arguments. The Bill was introduced after a long and, I have to say, bitter dispute. The Deputy Prime Minister, the Minister for Local Government, Regional Governance and Fire and the Fire Brigades Union all want to put that dispute behind them and move forward to a programme of reform and investment in the fire service. However, the climate of industrial relations in the fire service is already deteriorating over the non-payment of the first stage of the pay award. The Government need to send out the clearest possible message from this debate that the Bill does not contain any hidden threat to the FBU's right to strike. The best way to achieve that is, with the greatest respect to Members present, to remove any doubt from the Bill—not by making a ministerial statement, but by building a provision clearly into the Bill to the effect that no action could be taken on the basis of a breach of statutory duty.

Photo of Joan Walley Joan Walley Labour, Stoke-on-Trent North

I shall be brief because I know that several hon. Members want to speak. I congratulate my hon. Friend John McDonnell on the selection of his amendment and I am grateful that the Speaker has given us the opportunity to consider the amendments today, before the Bill becomes law. I cannot stress enough the urgency with which the Minister should respond to this brief debate.

I was present at the Remembrance day parade in my constituency in Burslem on Sunday when I spoke to members of the Staffordshire fire service, and I am aware of a heartfelt demand and need to move on and leave what has happened behind, to embrace the modernisation agenda and to ensure that we have proper industrial relations in place. That is why I feel that clarification of the issues raised by Lord Wedderburn and others in the other place is critical.

I believe that little more than poor advice is contributing to the doubts currently expressed and that the concern felt by many hon. Members should not inadvertently deprive the Fire Brigades Union of its protection in law in the event of it taking industrial action. The bare bones of the matter is that the statutory trade union immunity applies where the union has induced a breach of contracts, but the immunity does not apply, as my hon. Friend the Member for Hayes and Harlington set out, where the union has induced a breach of a statutory duty. If orders made under the Bill create statutory duties, it follows that industrial action taken against an order will, arguably—I say arguably—not be protected by the normal immunities. That is why I ask the Minister to respond to the concerns expressed today.

The Government have made it clear that they do not intend to deprive the FBU of the right to protection for properly conducted industrial action. I do not doubt that for one moment, but that is why it is so important that adequate provisions to ensure that protection should be included in the Bill. That is the purpose of the amendment. If there is the slightest doubt that the Bill could lead to the removal of that protection—as my hon. Friend the Member for Hayes and Harlington said, it has been in place to help trade unionists for more than one century, I—and, I believe, many others—would expect the Government to take steps now to clarify the position.

Anyone who has taken the trouble, as I have, to read the contributions of Lord Wedderburn and Lord McCarthy in the other place and to study the 10 pages of notes placed in the Library, and who knows of the integrity of our noble Friends and of all their work in employment relations, will conclude that a considerable element of doubt remains, although I saw that my right hon. Friend the Minister was shaking his head just now. The amendment will remove that doubt and it is difficult to see what possible objection the Government could have to that.

In a celebrated court case relating to education, it was stated that the court can use Hansard only as an indication of the Government's intentions if the Act in question is ambiguous. If the Fire Services Bill receives Royal Assent and becomes an Act, following our deliberations today, it is in any way ambiguous, it is essential that I can take a message to those Staffordshire fire service members that we have been given a clarification by the Minister today. That would be helpful in the event of any action that the courts may take in future.

Photo of Edward Davey Edward Davey Shadow Spokesperson (Office of the Deputy Prime Minister), Liberal Democrat Spokesperson (Office of the Deputy Prime Minister) 2:30 pm, 12th November 2003

On this occasion, I agree wholeheartedly with John McDonnell. As he knows, my colleagues and I disagreed with his position on the actual dispute between the Fire Brigades Union and the employers and the Government, but he and we agree that the Bill is otiose and indeed odious. We agree that his amendment should be included so that we do not retain the doubts that he and Ms Walley expressed.

I agree with the hon. Lady. As she made clear, the amendment would confirm rights that have been around for many years. It is about 97 years since those rights were enshrined, during the first year of that great Liberal Government of 1906, and it is important that they be retained. It would be bizarre if a Labour Government were unwilling to be clear about that right when previous Conservative Governments, of a right-wing nature, have upheld it. It is odd that a Labour Government would want to allow any ambiguity, so I hope that the Minister for Local Government, Regional Governance and Fire will think again.

The Minister wanted the power to impose a settlement through the Bill. We disagree, because we believe that mediation and arbitration—compulsory, if necessary—are a much better way forward. Ministers have always said, especially to Labour Back Benchers, that the measure would not make a strike illegal; it would not outlaw industrial action that followed a legally constituted ballot. However, given the evidence that we have heard—the remarks made by noble Lords who are extremely experienced in this area of the law—there is doubt. The Minister keeps shaking his head, but the fact that such opinions have been expressed suggests that there is a prima facie case to answer.

The Government accepted Lords amendment No. 2 to ensure that there was no doubt about the status, in relation to the Bill, of the agreement made in June 2003. It would thus seem logical that the Government should allow the amendment proposed by the hon. Member for Hayes and Harlington to be tacked on to the new clause so that there is no doubt that properly constituted ballots for strike action would not be made illegal by the backdoor.

Even at this late stage, I hope that the Minister will think again; he will not only placate Liberal Democrats but Labour Members.

Photo of Andrew Dismore Andrew Dismore Labour, Hendon

I declare an interest in that I remain a solicitor in a law firm that practises in industrial law, although I am not taking cases at present. I also spent a year working on it when, some years ago, I was a postgraduate student of Professor Lord Wedderburn, QC. Having completed that postgraduate degree, I practised in that area of law for 20 years, advising the Fire Brigades Union for most of that time—[Interruption.] I realise that I shall not be paid by the hour this afternoon.

The FBU is law-abiding; it always has been and always will be—at least as far as I am aware. However, chief fire officers are incredibly litigious. During my time as an adviser to the FBU, I had to defend the union on many occasions in legal actions over trade disputes brought by chief fire officers. They seemed to think that was the way to sort things out, even though it usually made things 10 times worse in the fire service—as generally happens when people go to law over any form of industrial action.

There is little doubt in this case. I know, from advising the FBU and many other public service unions over the years, that the whole tort of inducing breach of statutory duty is incredibly problematical for them. Statutory law has never really got to grips with providing the correct immunity for the right to strike of public sector workers.

The real issue relates to the consequences if we are wrong in advocating our position. If we and the Government are completely wrong about the right to strike, the consequence will be that the right to strike is taken away from the fire service, not only in the context of the Bill but of the Fire Services Act 1947 and whatever may replace it. If we are only partly wrong, the inevitable consequence will be that a chief fire officer will try his luck if he is met with trade union opposition when asked to implement an order under the Bill.

Photo of Jeremy Corbyn Jeremy Corbyn Labour, Islington North

My hon. Friend John McDonnell cited the judgment in Meade v. London Borough of Haringey. I was a member of Haringey council at the time. We closed schools for safety reasons and the subsequent case resulted in that judgment. Does my hon. Friend Mr. Dismore accept that the case was brought in an atmosphere of spite and vindictiveness against the council, which had closed schools to ensure that children were safe on that day? The case was brought for that reason alone rather than for any of the other reasons claimed by Meade and others.

Photo of Andrew Dismore Andrew Dismore Labour, Hendon

I am grateful to my hon. Friend for that intervention. He illustrates the fact that the point goes beyond the Bill. The tort of inducing breach of statutory duty is a major problem for the public sector in general and the Bill will make that worse for the fire service.

Even supposing that we or the Government are only partly wrong, it means inevitably that a chief fire officer will test the position in the courts. Such a case would take place not against a background of civilised debate in this Chamber, but in the full spotlight of a major row in that industry. What view will a court take in those circumstances? Believe it or not, judges live in the world; they read newspapers and, in general, they come from a particular background. As my hon. Friend the Member for Hayes and Harlington said, the judge has only to be satisfied that there is an arguable case on the facts in law. That is an extremely weak test, which was introduced by Cyanamid v. Ethicon—if I remember correctly from my law student days.

If a union failed to comply with an interim injunction, it would end up in the great chain of legal consequences that we saw during the miners' strike. Fines for contempt of court would be imposed and ultimately there would be sequestration, with all that comes from that. A law-abiding union could be put in an incredibly difficult position simply because the Government did not decide to accept an amendment that would avoid the doubt that the Bill could create. The consequences for the fire service, both generally and in terms of industrial relations, are serious. The consequences for public sector trade unions are serious, yet the problem could be dealt with relatively easily if the Government recognised that a small amendment to the Bill would make the position clear. It would not be a big deal for the Government to accept the argument put forward by the pre-eminent figure in this area of law since the war. Professor Lord Wedderburn is the leading expert in the field.

Accepting the amendments would not even be a U-turn for the Government. If they do not accept them, the consequences for the fire service and public sector trade unions in general would be very severe.

Photo of David Hamilton David Hamilton Labour, Midlothian

Will my hon. Friend put the matter in the simplest terms, for those of us who are not solicitors? Should not the rights afforded to FBU members be the same for every trade union member? Is not that the bottom line, irrespective of legal arguments?

Photo of Andrew Dismore Andrew Dismore Labour, Hendon

I know that the debate has been legalistic, but the question is: would the union be allowed to take industrial action if it objected to a direction given to the fire service by the Government? Such a direction might involve closing a fire station or redeploying a pump. There is grave doubt that the union could take industrial action legally.

Photo of David Drew David Drew Labour/Co-operative, Stroud

This is the crux of the debate with the Government. Shutting down a fire station would be the most controversial possibility, but a dispute could be with the Retained Firefighters Union rather than with the FBU. The retained firefighters would be put in an invidious position. What is my hon. Friend's opinion: should they represent their community, or obey the demands of the chief fire officer?

Photo of Andrew Dismore Andrew Dismore Labour, Hendon

If the retained firefighters were defending a station against closure for community reasons, the action would be illegal, as it would not be considered to be a trade dispute under existing law. If their aim was to defend their jobs, that would be a trade dispute, and therefore perfectly legal under existing law as well. However, it may not be legal under the Bill.

Does the House believe that public sector workers should have the right to strike? That is the question. Such a major step is never taken lightly. There is no need to go into the reasons for the recent, terribly damaging dispute in the fire service, the first major dispute of its kind since the winter of 1977–78. I hope that the Bill does not cause a relatively minor problem that could be sorted out to escalate into something major and become the cause of confrontation.

It is an essential human right that people are able to take industrial action. If we believe in that right, the amendment would avoid an awful lot of doubt. I urge the Government to accept it.

Photo of Philip Hammond Philip Hammond Shadow Minister (Communities and Local Government)

Before I deal with the amendments moved by John McDonnell, I shall say a few words about Lords amendment No. 2. It is an avoidance-of-doubt provision, and it is bizarre to see it inserted in a Bill such as this. I can see whence the hon. Gentleman drew his inspiration.

When the Minister responds to the debate, there are some matters that I hope that he will clarify. Although amendment No. 2 makes it clear that mediation, conciliation and arbitration over the implementation processes for the June 2003 agreement are possible, it does not preclude the possibility that the Secretary of State may use his powers under the Bill to negate the outcome. That renders amendment No. 2 superfluous. If it was inserted to send an emollient message, I hope that the Minister will make it clear that it is a matter of tone rather than substance.

I am not a lawyer, but I am astonished that the Bill refers to a specific trade union by name. That raises the question of hybridity. I always thought that hybridity was created when a particular individual interest was dealt with discriminatorily by a Bill. I should be grateful for an explanation from the Minister of why that is not the case with this Bill.

The Bill is time limited, unusual and untidy, but that does not compel the Opposition to vote against it. The use by the hon. Member for Hayes and Harlington of amendments to amendment No. 2 is slightly artificial as a way of reopening the debate on amendment No. 3 in the Grand Committee stage in the House of Lords, but it is interesting. Opposition Members in the Commons attacked the Bill for being toothless, as it contains no sanctions against the union. The hon. Gentleman, and his colleagues in the other place, have raised the suspicion that the Bill may contain some hidden teeth, and that although it provides no power to impose a strike ban, it presents the possibility that a trade union that takes industrial action could be exposed to actions in tort.

The hon. Member for Hayes and Harlington noted that there were complex debates in the other place about the history of the law in this area. There was a clear ministerial statement that the Government's advice was that the Bill does not undermine the immunity of a trade union to take action in the circumstances outlined. The Opposition believe that the Bill needs to be more balanced in its treatment of employers and unions. I am prepared to accept the presumably well qualified advice that the Government have received, but it would not seem helpful to undermine the Bill's lack of teeth by inserting the sort of amendment proposed by the hon. Gentleman.

To use a slightly unfortunate phrase, the firefighters' dispute has flared up again recently. Anything that reduces the FBU's appetite for conflict is helpful, and likely to benefit public safety. I understand the suspicion felt by the hon. Member for Hayes and Harlington, because if the amendments are redundant, the entire Bill is redundant too, because it contains no way of imposing the Secretary of State's directions on the employees. It has no sanctions in the form of a strike ban or exposure to action in tort, as the Government have confirmed. It does not allow the Secretary of State to do anything that the employers cannot do. The employers can impose terms and conditions unilaterally, move equipment about or dispose of premises. By abolishing section 19 of the Fire Services Act 1947 and recentralising the procedure, the Bill also goes against the thrust of Government policy.

As drafted, the Bill is aimed not at the unions and employees, but at the employers. Its aim is to prevent the possibility that a recalcitrant employer will collaborate with the unions to avoid carrying out the modernisation process that the Government envisage. It allows the Government to pull the strings from the wings, without stepping into the limelight, as they can threaten to use the powers granted by the Bill. The employers are the only bodies to be placed under a direct obligation by the Bill.

The situation that we face now, however, in November 2003, is exactly the one that we feared. It is one that the Government should have foreseen. A settlement was reached early in the summer, and the employers negotiated the details with the unions. But now, the unions are suggesting—quite scurrilously—that the detailed terms of the employers' offer somehow breach the terms of the settlement made in June. One of the senior labour negotiators on the joint negotiating committee has described that charge as dishonourable.

Far from the employers being recalcitrant, the union executive, under pressure from the hard-liners within the union, is seeking to renege on the commitments that it made in June, and by contrast the employers, the targets of the Bill, are standing firm, having made what I think the Minister would agree is a generous and conciliatory offer—to pay half the settlement now unconditionally, and the remainder once the conditions have been implemented.

Photo of Edward Davey Edward Davey Shadow Spokesperson (Office of the Deputy Prime Minister), Liberal Democrat Spokesperson (Office of the Deputy Prime Minister) 2:45 pm, 12th November 2003

I agree with the hon. Gentleman about that. Will he also make it clear that the extra 3.5 per cent. in stage 2 of the payment will be backdated to 5 November, so no union member would lose a single penny—

Photo of Sylvia Heal Sylvia Heal Deputy Speaker

Order. We are discussing the amendment rather than the terms of the offer.

Photo of Philip Hammond Philip Hammond Shadow Minister (Communities and Local Government)

That is right, Madam Deputy Speaker; none the less, it might be helpful to confirm that what the hon. Gentleman said is true.

The question is whether the Government will now back the employers to stand firm so that the union executive, in turn, is minded to stand firm against the hard-liners in the union who are trying to undermine the settlement of the dispute.

The Government have always painted the Bill as a fall-back and a last resort, so I was a little surprised to hear the Minister, in his opening remarks today, suggest that although he very much hoped that that would be the case, it might not now be possible not to use the powers. That somewhat alarmed me. Perhaps the Minister can tell us something about the contingency arrangements that the Government are putting in place—

Photo of Sylvia Heal Sylvia Heal Deputy Speaker

Order. I really must ask the hon. Gentleman to address his remarks to the words of the amendment.

Photo of Philip Hammond Philip Hammond Shadow Minister (Communities and Local Government)

Thank you, Madam Deputy Speaker.

I think that I have largely covered the issues in the amendment. We said during the Bill's previous Commons stages that we would support a Bill as a temporary measure, if it had teeth. The Bill as drafted has teeth in relation to the employers; the Opposition's concern is that it has no teeth in relation to the employees. The amendment would provide what the hon. Gentleman sees as at least a set of gums, if not teeth, in relation to the unions. However, in the context of the currently revived dispute, it would not be helpful to send the union any signal that would entrench the position that its executive now appears to be taking up. For the reasons that I have explained, therefore, if the hon. Gentleman presses his amendment to a Division we will not be able to support him in that endeavour.

Photo of Angela Watkinson Angela Watkinson Opposition Whip (Commons)

I shall speak briefly to Lords amendment No. 2, the new clause that is to be inserted after clause 1. I hope that you will not rule me out of order, Madam Deputy Speaker, if my comments are inappropriate, because I want to highlight the importance of the word "interpretation". From my recent discussions with firefighters, I know that the two sides are in negotiations, but there are concerns about the interpretation of what has been agreed and what remains to be agreed.

As we know, there is a staged pay award, but it depends on compliance with—

Photo of Sylvia Heal Sylvia Heal Deputy Speaker

Order. I am sorry, but I must remind the hon. Lady of what I have said from the Chair before: comment must be germane to the amendments under discussion rather than to the offer or anything to do with it.

Photo of Philip Hammond Philip Hammond Shadow Minister (Communities and Local Government)

On a point of order, Madam Deputy Speaker. Would I not be correct in thinking that Lords amendment No. 2 itself is part of the group, so comments dealing with "mediation, conciliation or arbitration" in connection with the implementation of the 2003 agreement would be in order?

Photo of Sylvia Heal Sylvia Heal Deputy Speaker

What I am trying to establish is that the amendment has nothing whatever to do with the pay offer. The words in the amendment, and the interpretation of those, are about

"the possibility of . . . mediation, conciliation or arbitration".

Photo of Angela Watkinson Angela Watkinson Opposition Whip (Commons)

I accept your guidance, Madam Deputy Speaker, but I shall have to adapt what I intended to say considerably, because I thought that the words

"the interpretation of the June 2003 agreement" would enable me to refer to the content of that agreement. Are you ruling that that is not possible?

Photo of Sylvia Heal Sylvia Heal Deputy Speaker

Yes, indeed. That is my ruling.

Photo of Angela Watkinson Angela Watkinson Opposition Whip (Commons)

In that case, Madam Deputy Speaker, I shall have to draw my remarks to an abrupt conclusion.

Photo of Nick Raynsford Nick Raynsford Minister of State (Office of the Deputy Prime Minister) (Local and Regional Government)

There have been three contributions in the debate, from my hon. Friends the Members for Hayes and Harlington (John McDonnell), for Stoke-on-Trent, North (Ms Walley) and for Hendon (Mr. Dismore), about the issue raised by Lord Wedderburn in another place, which I will tackle in a moment. The other main contribution—I am sorry that Angela Watkinson was not able to cover the ground that she wanted to cover—was made by Mr. Hammond, who asked a number of questions about Lords amendment No. 2 and the Government's intentions in relation to the Bill.

Without straying into areas into which I cannot and will not stray, I can tell the hon. Gentleman that the purpose of the Bill remains exactly as it was when we first introduced it. It is, as he says, a long-stop. We hope that we shall not have to use it, but as is clear from the recent discussions, there cannot be absolute certainty that the dispute will not flare up again. The Bill was intended to provide the Secretary of State with the ability to draw a line underneath what has been, as my hon. Friend the Member for Hayes and Harlington said, a long and bitter dispute, to enable the fire service to look forward.

As for hybridity, the reference to the Fire Brigades Union in Lords amendment No. 2 is a part of a description defining which agreement of June 2003 is being referred to. It in no way changes the rights and obligations of the FBU or the employers, so the concerns of the hon. Member for Runnymede and Weybridge about hybridity do not arise.

The amendments tabled by my hon. Friend the Member for Hayes and Harlington return to an issue discussed at great length more than once in another place—the impact of the Bill on the protection offered by the Trade Union and Labour Relations (Consolidation) Act 1992 to unions representing staff, in this case the staff of the fire and rescue service.

I shall again put on record what has been said repeatedly, particularly in another place, but also by members of the Government: the Bill does not jeopardise or alter the firefighters' or their union's protection or immunity under that Act. It is not about altering the framework of trade union law; it is simply about ensuring that if we need them, we have the powers to prevent the dispute, which I am afraid is still current, from affecting public safety.

The two amendments take different approaches to that issue. Amendment (a) would provide that nothing in the Bill could enable an action in tort—in layman's language, that is an action under which someone has the right to sue—solely because of the contravention of a statutory duty imposed by an order under the Bill. The last part of the amendment appears to limit its effect to orders that would affect the possibility of mediation, conciliation or arbitration.

I understand why my hon. Friend the Member for Hayes and Harlington tabled that amendment, but it would greatly restrict the impact of the provision, and I cannot imagine an order that would have that effect. Certainly, it is no part of our thinking that we might make an order about pay, hours of work or the use of appliances that would, or could, affect the possibility of mediation in any way. Therefore if the amendment really is limited to such orders, it would have no practical effect.

Photo of Andrew Dismore Andrew Dismore Labour, Hendon

Will my right hon. Friend give way?

Photo of Nick Raynsford Nick Raynsford Minister of State (Office of the Deputy Prime Minister) (Local and Regional Government)

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 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.

Photo of Andrew Dismore Andrew Dismore Labour, Hendon 3:00 pm, 12th November 2003

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?

Photo of Nick Raynsford Nick Raynsford Minister of State (Office of the Deputy Prime Minister) (Local and Regional Government)

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.

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.

Photo of Nick Raynsford Nick Raynsford Minister of State (Office of the Deputy Prime Minister) (Local and Regional Government)

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.

Photo of John Martin McDonnell John Martin McDonnell Labour, Hayes and Harlington

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 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.

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

The House divided: Ayes 85, Noes 412.

Division number 360 Fire Services Bill — Clause 1 — Powers of the Secretary of State

Aye: 84 MPs

No: 412 MPs

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Abstained: 1 MP

Abstaineds: A-Z by last name

Question accordingly negatived.

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.