2 Background to the proposal
2. The Prison Service has set out the background
to its proposal in section three of its explanatory statement.
Section 127 of the Criminal Justice and Public Order Act 1994
("the 1994 Act") provides that a person owes a duty
to the Secretary of State not to induce prison officers, custody
officers and prison custody officers to withhold their services
or to commit a breach of discipline. Loss or damage caused to
the Secretary of State by a person who induces a prison officer
to withhold his or her services or to commit a breach of discipline
is actionable by the Secretary of State against that person.
3. The context of section 127 is that at common law,
it is an actionable civil wrong for a person to induce another
to breach a contract. To allow organised industrial action, it
was necessary for statute to provide exemption from this common
law liability. The Trade Union and Labour Relations (Consolidation)
Act 1992 provides the necessary statutory exemption. Section
126 of the Criminal Justice and Public Order Act 1994 recognises
prison officers' rights under employment law, including the right
to bring unfair dismissal proceedings and to join a trades union,
but subject to the limitation of section 127. Section 127 was
enacted to provide the safeguard against the possibility of industrial
action in the prison service.
4. According to the Government, the effect of disapplying
section 127 will restore the full trade union statutory rights
to prison officers and honour a pre-election commitment.
5. At present, a legally binding agreement containing
no-strike provisions governs industrial relations between the
Prison Service in England and Wales and the Prison Officers Association
(POA). This agreement will be terminated on 25 January 2005 when
the 12 month notice given by POA to terminate the agreement expires.
In Scotland, the Scottish Prison Service entered into a separate
agreement with each of the Trades Unions it recognises for collective
bargaining purposes. This agreement is similarly binding to the
extent that the Prison Officers Association (Scotland) (POA(S))
has contracted not to induce, authorise or support any form of
industrial action by its members. Section 127 will continue to
apply in respect of Northern Ireland as well as to custody officers
and prison custody officers.
6. In written evidence, the Prison Service informed
us that Representatives from HM Prison Service and the Prison
Officers Association (POA) had successfully negotiated a new legally
binding collective agreement called the Joint Industrial Relations
Procedural Agreement (JIRPA) and that this had been ratified by
the membership and signed by representatives from the POA and
the Prison Service on 11 November 2004. The JIRPA will replace
the existing agreement in January 2005. The Government intends
at the same time to implement the Order to amend section 127 of
the Criminal Justice and Public Order Act 1994.[1]
7. Where legally binding agreements are absent, as
in the private prison sector and in Northern Ireland, the Government
has decided that the protection currently provided by section
127 should continue. This would leave the position regarding
prison officers in Northern Ireland and custody officers and prison
custody officers everywhere unchanged.
1 Appendix A, Q2 Back
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