House of Commons - Regulatory Reform

Select Committee on Regulatory Reform Third Report

4 Assessment of the proposal against Standing Order No. 141 (6) criteria

Is it an appropriate use of delegated legislation?

9. The proposal to repeal section 127 of the of the Criminal Justice and Public Order Act 1994 in relation to some prison officers contains some controversial aspects, specifically the Secretary of State's decision to limit disapplication of section 127 to only England and Wales and to Scotland and only in those sectors within those countries that have in place a legally binding no-strike agreement between employers and employees. Some respondents to the Government's consultation, including the Prison Service Union (PSU), criticised the Government's decision to continue to apply section 127 in certain areas. We do not, however, consider that this fact makes the proposal inappropriate for delegated legislation. We conclude that the proposal appears to be appropriate for delegated legislation.

Does it remove or reduce a burden?

10. The Prison Service states that the proposal removes an existing burden. According to the explanatory statement, section 127(1) of the Criminal Justice and Public Order Act 1994 is a "burden" for the purposes of the Regulatory Reform Act 2001 in the sense of being a restriction on the public at large.[2] We decided to explore this claim more fully with the Prison Service. We found it difficult to see what activity the general public would be carrying on that would be affected by this restriction.[3] We suspected that the restriction is principally a burden on trade unions representing prison and custody officers as it affects them in the activity of carrying on their functions as a trade union. We asked the Prison Service to explain how section 127(1) could be a burden on the general public at large as described by the explanatory statement, page 8, and specifically in the carrying on of what activity members of the public would be affected. In its written response, the Prison Service agrees that it is difficult to see how the repeal of section 127 affects any activity of the public at large. The Prison Service also pointed out that the prohibition in section 127 is directed at "any person" and could include, for example, a union official not employed directly by HM Prison Service. Despite these weaknesses in the description in the explanatory statement, we are satisfied that the proposal removes a statutory burden within the terms of the Regulatory Reform Act 2001.

Does it continue any necessary protection?

11. Under current arrangements, the protection against organised industrial action by prison officers, custody officers and prison custody officers is provided by section 127 of the 1994 Act. As noted above, for some prison officers, this protection is reinforced by a legally binding agreement that currently exists between the Prison Service and the POA and its Scottish counterpart (POA(S)) not to take strike action. In the Government's view, section 127 can be disapplied on the grounds that where such a legally binding agreement exists the necessary protection is maintained. The Government points out that over recent years there has been an improvement in industrial relations within the public prison service and that with legally binding agreements in place, no necessary protection will be lost by the introduction of this proposal. On the face of it, the replacement of the current statutory restriction by a legally binding agreement looks as if it would have little practical effect and would continue to provide the necessary protections. Indeed, it is clear from the explanatory statement that the Prison Service considers that the Order would not be made without the protection from the risk of strike action or coordinated breaches of discipline in the public prisons conferred by the two agreements (one for England and Wales and one for Scotland).[4] We questioned the Prison Service about the risk that the protection afforded by these agreements may be less robust than that conferred by section 127.

12. First, we questioned the Prison Service about the agreements being terminable after 12 months notice had been given. This potential risk is acknowledged by the Prison Service, but it appears to judge as remote the possibility that the union may not wish to negotiate a further agreement.[5] Although this risk may be remote, any protection provided by an agreement would appear to be of no longer duration than a 12 month rolling period.[6] We asked the Prison Service about how it proposes to deal with the possibility of legally binding agreements being terminated by one of the parties and specifically whether the Prison Service would seek to reapply section 127 of the 1994 Act. The Prison Service told us that if this set of circumstances happened the Prison Service might decide to return to Parliament to re-enact by primary legislation the provisions of section 127 which are now being removed. At the present time this is thought to be unlikely.

13. Secondly, we questioned the Prison Service about the complicated position in Scotland where there are four parties to the agreement (the Scottish Prison Service and three unions), but only the POA(S) has agreed not to induce industrial action.[7] This suggests that the agreement offers no protection in respect of the other two unions and so in our view has the potential to provide less protection than is provided by section 127 and that claimed by the Prison Service. When we questioned the Prison Service we were told that within Scotland all the recognised trade unions had signed a comprehensive Partnership Agreement with Scottish Prison Service Management which committed the trade unions and management to work together to promote the success of the Scottish Prison Service in a competitive environment.[8] The Prison Service also told us that the Partnership Agreement had been very successful and had strengthened further the appreciation that for recognised trade unions' members within the Scottish Prison Service their interests were not best served by industrial action.[9] The Prison Service also noted that the existing so-called Voluntary Agreement in Scotland is generally wider than section 127 as it covers all staff groups.[10] The Prison Service pointed out that the legally binding coverage of the Voluntary Agreement in Scotland is the same as section 127 - with the exception of senior operational managers who are represented by the Public and Commercial Services Union (PCS) - and it was felt that the vocational ethos and numbers associated with this latter group of staff meant that they were highly unlikely to take industrial action.[11] According to the Prison Service, non-POA signatories to the Voluntary Agreement are considered to be committed to resolving issues through the industrial relations procedural agreement.[12]

14. Thirdly, we asked the Prison Service what protection in Scotland would be available in the event that staff leave the union that is party to a legally binding agreement and join unions that are not party to such agreements. We note that the Prison Service Union (PSU) already represents some prison officers[13] and that in Scotland there are two unions besides the POA(S) which represent prison officers. We also note the possibility that these unions, as well as others such as the GMB, may succeed in recruiting current members of the POA or POA(S), particularly if those staff felt that their existing unions were not standing up to the employers. We point out that section 127, as it currently applies, provides that any person contravenes subsection (1) if he induces a prison officer to withhold his services or to commit a breach of discipline whereas the Voluntary Agreement provides a right of action only against the POA or the POA(S). If prison officers become members of other unions, or if someone other than a union induces industrial action, the agreements are immaterial and provide no protection. The Prison Service told us that the position in Scotland was no different to that in England and Wales in this respect. If members moved from the POA(S), which is formally recognised by Scottish Prison Service to represent prison officer staff through collective bargaining, they effectively give up their voice in the established process of collective bargaining.[14] The Prison Service also noted that the threat of industrial action by a smaller trade union (even if it managed to meet all of the statutory requirements and tests for it to be regarded as lawful) is not seen as constituting a significant threat to the delivery of services within Scottish Prison Service. The Prison Service added that if the collective bargaining power of the POA should significantly diminish in favour of another trade union, the formal recognition of the POA as the trade union with recognition rights for the prison officer staff group would be reviewed.[15] To the extent that the current limitation on the inducement of strike action by staff in public prisons would be replaced by a legally binding agreement that similarly restricts industrial action, the proposal would have little practical effect on the ground.

15. We are not entirely convinced by these arguments. It seems to us that the arrangements referred to above do not provide the same degree of protection from inducements to strike or commit breaches of discipline as is provided by section 127. Rather the position appears to be that necessary protection will be maintained in relation to those unions who have entered into such arrangements for so long as those arrangements remain in place. The acknowledgement by the Prison Service that, in the unlikely event of there ceasing to be legally binding agreements with the relevant trades unions, it would be necessary to re-impose section 127 in relation to prison officers in Great Britain appears effectively to concede the point. We consider that the proposal could be amended so that, instead of disapplying section 127 altogether as regards certain groups of prison officer, it suspends the application of section 127 in relation to any trades union for so long as that union is contractually bound not to induce industrial action or breaches of discipline by prison officers. In this way the protection of the section would remain in relation to other persons and unions and would resume in relation to a trades union which ceased to be contractually bound. However, the interests that are protected by section 127 are primarily those of the Secretary of State and the Prison Service. They will not wish to proceed with the proposal unless they are satisfied that it will provide them with adequate protection. We therefore consider that, although the proposal does not maintain existing protections, it is appropriate in the circumstances to leave it to the Secretary of State to determine whether the protection it does provide is adequate.

Does it prevent the exercise of rights and freedoms?

16. The Prison Service claims that the proposal does not prevent any person from continuing to exercise any right or freedom. Moreover, it argues that the changes restore the full trade union statutory rights of state employed prison officers in England and Wales and in Scotland within the context of a contractual dispute resolution process that limits industrial action. As noted above, the restoration of full trade union statutory rights would not extend to prison officers in Northern Ireland or private prison staff (custody officers and prison custody officers) wherever they are located in the UK. Despite the Government's decision to continue to apply section 127 in some areas, we conclude that the proposal does not prevent any person from continuing to exercise any right or freedom which he or she might reasonably expect to continue to exercise.

Have there been adequate consultations?

17. The proposal involved two separate consultations. The initial consultation period ran from 15 December 2003 to 9 February 2004, a period of only eight weeks instead of the normal 12 weeks, on the grounds that the issue had been subject to preliminary consultation between the major stakeholders and had been reported in the press and that the proposal has a very narrow focus. At the end of that consultation, a consortium of Private Custodial Service providers stated that if section 127 was removed in its entirety then there would be no necessary protection in place because of the absence of a legally enforceable collective agreement between themselves and their recognised trades unions. The Minister accepted that point and took the decision to amend the proposed Order so as not to disapply section 127 in respect of prison officers in Northern Ireland and custody officers and prison custody officers employed by the private sector. The Prison Service then conducted a second consultation, which ran from 26 March until 21 May 2004, which was another eight week period. We note the department's explanation for the short consultation periods, but we wish to emphasise that departments are expected to comply fully with Cabinet Office guidance on the length of consultation.

18. The consultation documents were sent to 137 individuals and organisations. A list of those consulted is reproduced at Annex A to the explanatory statement. The double consultation produced eight substantive responses, comprising three in the initial period and five for the further consultation.

19. In general terms, the responses were divided on the issue of whether section 127 should be disapplied. The responses followed the predictable division between both sides of industry. For example, in a joint response, the private providers of Justice Services stated that as private sector companies involved in court escorting, prisons and other custodial facilities they have relied upon the protection of section 127 in avoiding the possibility of industrial action. They commented that it was uncertain that the recognition agreements that they have in place with recognised unions were legally binding, implying that it was equally uncertain that they provided the same degree of protection against industrial action. The private companies also commented that the removal of section 127 could cause a shift in the balance of industrial relations and would have a detrimental effect on future moves to contract-out public prisons.[16]

20. On the other hand, PSU (Prison Service Union) strongly criticised the Government's declaration not to disapply section 127 unless legally binding agreements were in place. PSU pointed out that some private companies would do anything to avoid granting recognition and collective bargaining rights to any independent trade union and that the Government's proposal would provide a disincentive to such companies. PSU said that it had recognition agreements with a number of private custodial companies, including Premier Custodial Group Ltd, and that its partnership agreement included clauses preventing industrial action of any description. PSU pointed out that some of its agreements were legally binding and that it was confident that its agreements with similar clauses with other companies, which currently were not legally enforceable, could be made legally binding. PSU commented that, unlike the public prisons, industrial action in the private sector was not seen as a first resort. PSU pointed out that the Government's intention to disapply section 127 had been widely canvassed and that private companies have had time to get legally binding agreements in place. PSU argued that the Government should correct the unfairness of section 127 and disapply section 127 for everyone, including those in the private custodial sector. PSU concluded by saying that if the Government believed industrial action is inappropriate in the custodial field, then it should be outlawed, whereas if it is content for industrial action to be used, then it should disapply section 127 for everyone.

21. As noted above, PSU also criticised the Government's decision not to disapply section 127 in relation to private companies supplying custody services because its retention would provide a disincentive for such companies to recognise independent trade unions.[17] In response to this point, the Government stated that it is its intention to disapply section 127 in its entirety, but only where equivalent protection is available following disapplication.[18] We asked the Government, what, if anything, it was doing to encourage unions and companies to reach such agreements. The Prison Service told us that each of the private sector contractors which provide custodial places had been informed of the Government's expectation that they would enter into legally binding collective agreements with their respective recognised Trade Unions/ Staff Associations. The Prison Service added that consultation with each individual contractor continued with regard to what is required to demonstrate that effective steps have been taken to allow section 127 to be disapplied in each case, but the continuing discussions are at different stages with each contractor.

22. Public and Commercial Services Union (PCS) also supported the disapplication, but considered that it should also extend to workers in Northern Ireland and to custody officers in the private sector. PCS pointed out that some private custody companies had resisted numerous requests for union recognition from POA, PCS and its predecessor unions. GMB, which has a long standing policy to oppose "no-strike" agreements where arbitration is automatically reached, argued that the proposal does not provide the necessary protection to its members.

23. The POA said it was fully committed to the repeal of section 127. Nicky Padfield of the Institute of Criminology (Cambridge University) argued that to provide prison officers with the right to strike, but only on the grounds that the main union has agreed not to use it, is controversial. She argued that the Prison Act 1952 was inappropriate today and called for a wider review of the Act. Ms Padfield criticised the wide powers available under the Regulatory Reform Act 2001 and the reduced period for the initial consultation.[19]

24. We acknowledge that the Prison Service has provided a very clear and helpful commentary on the responses to its consultation, including a point by point summary of each submission.

25. The Consultation on the proposal for a Regulatory Reform Order appears to have been the subject of, and taken appropriate account of, adequate consultations.

What is the estimate of costs, savings and other benefits?

26. The Prison Service explanatory statement concludes that the proposal is designed to be cost neutral on the grounds that as the full trade union statutory rights of prison staff would be re-instated, the contractual limitations mean that these rights would be voluntarily restricted. As regards benefits other than savings, the Prison Service statement makes clear that the proposal honours the Government's pre-election pledges, although, as the Prison Service points out, the changes in themselves would not have a great deal of practical impact. We are satisfied that the proposals have been the subject of, and taken appropriate account of, estimates of increases or reductions in costs or other benefits which may result from the implementation of the proposed order.

Was it clearly drafted?

27. Although the draft Order is very straightforward, we found that the consequential amendment in article 3(2) was misguided, as the definition which it purports to amend was repealed by regulations 3(1) and 24(e) of the Disability Discrimination Act 1995 (Amendment) Regulations 2003 (S.I. 2003/1673). In short, article 3(2) should have been omitted. In reply we were told that the Prison Service was unaware of the repeal in question, which had come into force only 18 days before the proposal was laid. They regretted this oversight and would amend the Order before it is laid before Parliament under section 8 of the Regulatory Reform Act 2001.[20]

Are there other considerations to take into account?

28. In scrutinising this proposal we have considered whether any other issues arise which we are required by our Standing Order to take into account and are satisfied that there are none.

2 Explanatory statement, page 8 Back

3 To be capable of reform under section one of the Regulatory Reform Act, legislation must have the effect of imposing burdens "affecting persons in the carrying on of any activity." Back

4 For example, see the Further Consultation Document, March 2004, especially comments on Northern Ireland and private prisons and page 7. Back

5 Appendix A, Q2 Back

6 See explanatory statement, page 10 Back

7 See explanatory statement, Annex C, clause 4.10 Back