(PRISON OFFICERS) (INDUSTRIAL ACTION) ORDER 2005 No
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EXPLANATORY DOCUMENT TO THE REGULATORY REFORM (PRISON OFFICERS) (INDUSTRIAL ACTION) ORDER 2005 2005 No. 908 THE REFORM OF Section 127 OF THE CRIMINAL JUSTICE AND PUBLIC ORDER ACT 1994 BY ORDER UNDER THE REGULATORY REFORM ACT 2001 STATEMENT BY HM PRISON SERVICE INTRODUCTION This statement is laid before Parliament in accordance with section 6 of the Regulatory Reform Act 2001 together with the draft of the Regulatory Reform (Prison Officers)(Industrial Action) Order 2004 which we propose to make under section 1 of that Act. The purpose of the draft Order is to amend Section 127 of the Criminal Justice and Public Order Act (1994) DESCRIPTION OF PROPOSAL We propose a change to primary legislation. This change will affect three types of prison staff. Staff employed in public sector prisons, are called Prison Officers. There are two types of staff employed by private sector prisons: Custody Officers, who work within secure training centres (contracted out to the private sector), and Prisoner Custody Officers, who work within prisons (contracted out to the private sector) and who escort prisoners when they are being moved between custodial establishments, and courts. Section 127 of the Criminal Justice and Public Order Act 1994 (S.127) provides that a person owes a duty to the Secretary of State [1] not to induce Prison Officers, Custody Officers and Prisoner Custody Officers to withhold their services or to commit a breach of discipline. Loss or damage caused to the Secretary of State [1] by a person who induces a Prison Officer to withhold their services or to commit a breach of discipline is actionable by the Secretary of State [1] against that person. The change that is proposed is to amend S. 127, in order to dis-apply it in relation to inducements in respect of Prison Officers in England and Wales, and Scotland. S. 127 will continue to apply in respect of Prison Officers in Northern Ireland as well as private sector prison staff (Custody Officers and Prisoner Custody Officers), wherever they are located in the UK. EXTENT The order extends to the United Kingdom. [1] or in Scotland, the Scottish Ministers 2 As a reserved matter concerning employment and industrial relations legislation, the amendment of S. 127 in so far as it applies to Scotland is a matter for the Secretary of State rather than Scottish Ministers. However, it is recognised that Ministerial responsibility for Scottish Prisons is a devolved matter and therefore rests with Scottish Ministers. As such, the Secretary of State has jointly considered responses to the consultation exercise with Scottish Ministers in so far as they are relevant to Scotland so as to ensure that the consideration of responses and decisions about next steps were fully informed. Scottish Ministers shall continue to be consulted on developments and kept informed of progress in the taking forward of Parliamentary processes for the amendment of S. 127. Final and formal consent to the amendment in so far as it applies to Scotland shall be sought before the Order comes into force. S. 127 will continue to apply in Northern Ireland, as there is currently no legally enforceable agreement in place. BACKGROUND Currently S. 127 of the Criminal Justice and Public Order Act 1994 provides that there is a duty owed to the Secretary of State [1] not to induce a Prison Officer, Custody Officer or Prisoner Custody Officer to withhold his services or to commit a breach of discipline, and that loss or damage sustained by the Secretary of State [1] is actionable against the person in breach. The context of S. 127 is as follows. At common [1] or in Scotland, the Scottish Ministers 3 law it is a tort [2] for a person to induce another person to breach a contract of employment or to interfere or induce another person to interfere with the performance of such a contract, or to threaten to do those things. This legal liability effectively restricted workers’ organisations from organising industrial action. To allow industrial action, it was necessary for statute to provide exemption from this common law liability. The present provision is section 219 of the Trade Union and Labour Relations (Consolidation) Act 1992. Section 219(1) provides that an act done in contemplation or furtherance of a trade dispute is not actionable in tort [2] on the ground only (a) that it induces another person to break a contract or interferes or induces another person to interfere with its performance, or (b) that it consists in his threatening that a contract (whether one to which he is a party or not) will be broken or its performance interfered with, or that he will induce another person to break a contract or interfere with its performance. A 1993 High Court case held that a dispute between the Prison Officers Association (POA) and HM Prison Service did not amount to a ‘trade dispute’ as defined, because it was not a dispute between ‘workers’ and their employer. The Employment Appeal Tribunal in Home Office v Robinson [1982] ICR 31 had already accepted that, as a Prison Officer has the powers and privileges of a constable, he was therefore not an ‘employee’ who could bring proceedings for unfair dismissal. The Government at the time recognised this as unfair. They wanted to limit the possibility of prison staff taking action whilst ensuring that they also had appropriate protection under [2] the reference to tort should be construed as delict in relation to Scotland 4 employment law. For this reason section 126 of the Criminal Justice and Public Order Act 1994 was subsequently enacted, thereby allowing Prison Officers the right to bring unfair dismissal proceedings. However, S. 127 was enacted as a safeguard against industrial action. The present Government made a commitment to restoring the full trade union statutory rights to Prison Officers prior to the 1997 General Election. The current Home Secretary, David Blunkett reinforced this commitment at the POA Annual Conference in May 2003. Between 1997 and the present day there has been a much-improved relationship between the Prison Services in both the England and Wales and Scotland jurisdictions and the Prison Officers union, the POA. This improved relationship resulted in both the POA and the Prison Service in England and Wales signing a contractually binding agreement that resulted in third party dispute resolution through an independent arbitrator tied to a no strike agreement. The agreement, which was known as the Voluntary Agreement (VA), was signed in 2001 and provided that the POA ‘would not induce, authorise or support any form of industrial action by any of its members relating to a dispute concerning any matter, whether covered by the VA or otherwise, which would have had the effect of disrupting the operations of the Prison Service. Both parties will use their best endeavours to prevent any form of industrial action.’ (Clause 4 (11)). The POA gave notice of termination of the Voluntary Agreement on 27 January 2004, which underpins the proposal to dis-apply S. 127 so far as the England and Wales jurisdiction is concerned. However, the Prison Service and the POA NEC have agreed a new legally enforceable collective 5 agreement that will provide protections equivalent to the Voluntary Agreement in that “The POA agrees that it will not induce, authorise or support any form of Industrial Action by any of its members employed in the Prison service relating to a dispute concerning any matter, whether covered by this agreement or otherwise." "In the event of a breach of this agreement by the POA, the Prison service may take action in court, including Injunctive Relief." In Scotland, the Scottish Prison Service entered into its own Voluntary Industrial Relations Agreement (VIRA) in December 2001 with each of the Trades Unions it recognises for collective bargaining purposes. In respect of the POA, the VIRA is similarly legally binding to the extent that the POA have contracted not to induce, authorise or support any form of industrial action by its members (see Clauses 4.2 and 4.10). The POA have not given notice to withdraw from the VIRA in Scotland where there appears to be a continuing degree of satisfaction on the part of both SPS and the POA with the degree of satisfaction on the part of both SPS and the POA with the arrangements in place. In the England and Wales and Scottish Prison Services an atmosphere of joint working and consultation has been fostered which has borne fruit in terms of better dialogue and an open approach to contentious issues. Indeed, since entering into the Voluntary Agreement in Scotland, the Scottish Prison Service and each of the Trade Unions it recognises for collective bargaining purposes have signed a Partnership Agreement, which is built on the principles of partnership working as defined in the TUC’s 1997 ‘Partners for Progress’ document. At the same time, the legally enforceable collective agreements tie the parties in both jurisdictions into formal dispute resolution 6 procedures, which include recourse to ACAS conciliation and independent binding arbitration. THE PROPOSALS The proposed change to the legislation recognises the improvement in relations between the POA and the Prison Services in both the England and Wales and the Scotland jurisdictions, and honours the pledge made by the Government prior to the 1997 General Election and reiterated by the Home Secretary in 2003. The original intention was to remove the application of S. 127 in relation to inducements of Prison Officers in England, Wales and Scotland, Custody Officers and Prisoner Custody Officers wherever they are employed in the United Kingdom, and for S. 127 to remain with regards to Prison Officers in Northern Ireland.