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Orders of the Day
Criminal Justice and Immigration Bill
As amended in the Public Bill Committee, considered.
[ Relevant documents: Letter from the Chairman of the Joint Committee on Human Rights to the Minister of State, Ministry of Justice, of 29( th) October 2007; and the Department’s replies to the Chairman of the Committee of 25( th) November and 10( th) December 2007.]
‘(1) Section 127 of the Criminal Justice and Public Order Act 1994 (c. 33) (inducements to prison officers to withhold services or breach discipline) is amended as follows.
(2) In subsection (1), for paragraph (a) substitute—
“(a) to take (or continue to take) any industrial action;”.
(3) After subsection (1) insert—
“(1A) In subsection (1) “industrial action” includes the withholding of services as a prison officer and any other action likely to affect the normal working of a prison.”
(4) In subsection (4), after paragraph (a) insert—
“(aa) holds any post, other than as a chaplain or assistant chaplain, to which he has been appointed for the purposes of section 7 of the Prison Act 1952 (appointment of prison staff),”.’.— [Mr. Straw.]
Brought up, and read the First time.
1.45 pm
The Secretary of State for Justice and Lord Chancellor (Mr. Jack Straw): I beg to move, That the clause be read a Second time.
Mr. Deputy Speaker (Sir Michael Lord): With this it will be convenient to discuss amendment (a) to the proposed new clause, in subsection (3), leave out from ‘officer’ to end of subsection.
Government new clause 37— Power to suspend the operation of section 127 of the Criminal Justice and Public Order Act 1994.
Government amendments Nos. 169 and 170.
Mr. David Winnick (Walsall, North) (Lab): On a point of order, Mr. Deputy Speaker. Could you confirm that the series of debates that we are about to have on these amendments must be concluded by 2.43 pm?
Mr. Deputy Speaker: That is absolutely correct, and any time that we take up now will be taken out of that time, so I suggest to the House that we get on with it.
Mr. Straw: On Monday, for an hour, I gave a statement, in the course of which I obviously took questions, to set out why the Government have reluctantly felt compelled to come forward with these amendments to the law, which are to be included in the Bill. Let me now set out some of the background. I am of course ready to take interventions from either side of the House, as I always do.
In the 1970s, 1980s and early 1990s, there was, for a variety of reasons, serious industrial action—often not direct strike action but other kinds of industrial action—within the Prison Service, which made the management of the Prison Service extremely difficult and placed public safety at risk, as well as placing the welfare of prisoners in serious jeopardy. The Government of the day did two things. In 1993, they went to court to seek an injunction restraining prison officers under the existing law, which they succeeded in obtaining. Then, in what became the Criminal Justice and Public Order Act 1994, they moved amendments, which became sections 127 and 128 of that Act, to prohibit industrial action by prison officers. At that time, as we were reminded yesterday—and it has been a point that the Prison Officers Association has raised—the Labour Opposition spoke and voted against those amendments. However, I want to make it clear that in doing so, my right hon. Friend the Member for Cardiff, South and Penarth (Alun Michael) did not give an undertaking to repeal section 127 and made it clear that there could be circumstances in which we would accept that such a restriction on industrial action in the Prison Service should be on the statute book. He said:
“It could be argued that when there are people who have special responsibilities—the police are in such a category and it may be argued that prison officers are as well—and therefore there are difficulties about taking specific forms of...industrial action, there should be a guarantee against that. If that is desired, such people should be given something in return—for example, a right that guarantees fairness in any negotiations.”—[ Official Report, 13 April 1994; Vol. 241, c. 335.]
He referred to agreements that existed at the time in respect of the fire service. It is also the case that our former Prime Minister, when he was Leader of the Opposition, gave undertakings in general terms about what was regarded as anti-trade union legislation in that Bill and elsewhere. I have to say to my hon. Friends that there were particular things in the measure as originally proposed by the Conservative Government that were plainly totally unacceptable and raised the temperature. They included measures that would have resulted in the certification officer being able to certify the Prison Officers Association as an independent trade union. It was only under pressure from the Labour Opposition that those matters were sorted out.
I also want to make it clear that when I became shadow Home Secretary in the summer of 1994 and considered, in full consultation with the shadow Cabinet of the day, whether we should repeal that legislation, I decided that, without more such legislation, we should not, because of the very special circumstances that apply in respect of the running of a prison, which, I suggest, are similar to those of the services to the state and to the community provided by the police and the armed forces. I say to the House, and remind my colleagues, that at no stage did anybody, be it the then Leader of the Opposition, me or anybody else, ever give undertakings that section 127 would be repealed, nor was it in any manifesto, either in 1997 or 2001. Indeed, on three occasions I had to make use of the injunctive power under section 127 to avoid a very serious situation within the Prison Service. I have no recollection of that ever being the subject of complaint from anyone in the House. However, we were concerned to do what my right hon. Friend the Member for Cardiff, South and Penarth said, by ensuring that reciprocal arrangements
were put in place to balance the fact that prison officers were not able to take industrial action. First, we sought to bring into force part of the 1994 Act, which could easily have been brought into force by the Conservative Administration, but was not, to set up an independent pay review body in place of the previous ramshackle arrangements for settling prison officers’ pay.
John McDonnell (Hayes and Harlington) (Lab): My right hon. Friend has suggested that in the summer of 1994, he took a decision on behalf of the Opposition, and the Labour party, that there would be no abolition of section 127. However, a letter of 6 July from Mr. Tony Blair MP to the Prison Officers Association says clearly:
“An incoming Labour Government will want to put this situation right”—
that is, the issue of the Criminal Justice and Public Order Bill—
“and ensure, once again, that prison officers are treated in the same way and with the same working rights as other public servants, and recognises the status of the Prison Officers Association as an independent Trade Union”.
I believe that the POA and the labour and trade union movement generally interpreted that accurately as a Government commitment to restore the trade union rights of the POA, which means the right to withdraw one’s labour.
Mr. Straw: I understand what my hon. Friend says, but the simple fact is that I made the judgment during the period between summer 1994 and 1997. I do not recall any pressure—except from the Prison Officers Association, which I explained I could not accept—to include a specific commitment to repeal section 127, and no such commitment went into the manifesto. I do not recall any suggestion at the so-called clause 5 meetings that take place with the national executive, or at meetings of the shadow Cabinet of the day, that we should have such a specific commitment, nor was one made.
Winding forward, I have set out—as did Paul Boateng on my behalf in 2000—how we have sought to negotiate a voluntary agreement and a comprehensive package of reforms of industrial relations in the Prison Service to obviate the need for reliance on section 127. That is what Paul Boateng told the House on my behalf in summer 2000. We introduced the pay review body and the then Home Secretary, my right hon. Friend the Member for Sheffield, Brightside (Mr. Blunkett), took the matter forward with the then Prisons Minister, my hon. Friend the Member for Wythenshawe and Sale, East (Paul Goggins). There was then a series of intensive negotiations with the POA about establishing a new, comprehensive voluntary agreement in return for a suspension and/or repeal of section 127.
My hon. Friend the Member for Wythenshawe and Sale, East, who led those negotiations, has authorised me to say that throughout the negotiations with the POA it was made clear at every stage that the voluntary agreement to which we could assent had to include a comprehensive and legally binding undertaking by the association not to take industrial action. It was only in respect of that that the Government moved, by an
order under the Regulatory Reform Act 2001, to repeal section 127 of the Criminal Justice and Public Order Act 1994. When that repeal occurred, it was made clear—initially in the other place because that was where it was dealt with, and subsequently in this House—by my hon. Friend the Member for Bradford, South (Mr. Sutcliffe), who had taken over as Prisons Minister, that
“If the POA gives notice to terminate the agreement with no alternative arrangements being in place, the Secretary of State would ask Parliament to reintroduce statutory constraints such as existed prior to disapplication of Section 127.”—[ Official Report, 4 September 2006; Vol. 449, c. 1897W.]
That is absolutely fundamental to this part of the story, which is why I ask all my right hon. and hon. Friends, as well as the House more generally, to support the introduction of what will be a reserve power in the event that we cannot reach a further voluntary agreement.
By the time that the POA had signed up to the 2005 joint industrial relations procedural agreement, or JIRPA, it had voluntarily accepted that whatever else happened in the Prison Service, there could not be industrial action because of the risk to public safety and, I have to say, to the welfare of prisoners. We saw on 29 August the serious risk to prisoners if there is industrial action or a strike: they are literally locked in their cells with no idea when the next meal or exercise is coming, and the quite large number of prisoners with health needs have no idea when their medication will next turn up.
The POA accepted that, but now in a round robin to MPs it says that it signed up to the agreement only under duress—its exact words. But that is not the case. It did not sign up to it under duress, but voluntarily. Indeed, I think that the matter went to a delegate conference. The association examined every single word in that agreement. It signed it and accepted the case voluntarily that I am now making to the House, which is that we have to have arrangements for dealing with industrial disputes in the Prison Service other than the possibility of industrial action because of the risk to the public and the dangers to the welfare of prisoners.
Mr. Douglas Hogg (Sleaford and North Hykeham) (Con): May I remind the right hon. Gentleman that I was the Prisons Minister at the time of the Wandsworth strike? I therefore approach this matter as one who had to deal with a strike by prison officers. I agree with the analogy made between prison officers and police officers, but I fail to see why we should ever have contemplated relying on a voluntary agreement with the POA. Either now or in the future, there needs to be a statutory prohibition in force that is in no way the subject of a voluntary agreement.
Mr. Straw:
I understand the right hon. and learned Gentleman’s point of view. However, the POA came along and said—I paraphrase and summarise, but entirely accurately—that it was ready for a voluntary agreement. It accepted that the voluntary agreement would be comprehensive. It accepted the terms of the voluntary agreement, which I shall read out in a second, and it also knew all the way through the negotiations that the deal it had signed up to consisted of clear, legally binding and enforceable undertakings
not to take industrial action of almost all kinds, and that we would only seek the repeal or suspension of section 127 on that basis. When we sought that repeal, absolutely categorical undertakings were given to the other place, and to this House, in the terms I have read out, that should notice of termination of the agreement be given over a period of a year, as it has now been, we would bring back those powers.
We were given notice of termination last May, which runs out on 8 May this year. I was asked why I have introduced this legislation now. In practice, because of the time it takes a large Bill to go through the Lords, this is the last possible moment, more or less, for legislation to go through in normal time. The only alternative would have been to wait until 8 May and then introduce emergency legislation. In such circumstances, I would have been asked by the Opposition what the emergency was, given that we had known about this possibility for a year. My view was that it would be quite false to suggest at that stage that there was some kind of emergency when there was not.
Moreover, I also had to take into account the following. On 29 August, at 45 minutes’ notice, the POA decided to take 24-hour strike action to protest against the phasing of its pay award. I understand its anger. However, in doing what it did, it broke the undertakings that it had already given, because the agreement was current at that time.
2 pm
I appreciate that the matter is difficult, especially for our side. However, we have accepted that the police and the armed forces cannot go on strike. Anyone who had to deal with the strike, as I did, on 29 August, would have had any doubts that they may have harboured about the need for restrictions on industrial action by prison officers removed by what happened. Only as a result of obtaining an injunction and talking matters through with Colin Moses and with great help from third parties did we manage to persuade the prison officers to call off their strike during that afternoon.
Notwithstanding that, there was a total breakdown of order in Lancaster Farms’ Buttermere wing, which houses unstable and potentially violent young offenders, aged 15 to 18. They had been locked in their cells, with only a dozen governor-grade officers on duty to cover the whole youth offender institution, which has a total of 500 young prisoners. It became very clear that those young prisoners were rioting in their cells. I saw the damage and spoke to the staff who had to try to deal with it. The prisoners had completely wrecked their cells, pulled out all the sanitary ware, started fires and so on. Members of the POA outside the gates were asked to come back to help to restore order and they failed to do so. I have to take that into account.
Notwithstanding all that, the moment we had notice from the POA that it would terminate the agreement in May, my right hon. Friend the Minister with responsibility for prisons got in touch with the Trades Union Congress and asked it to appoint someone to be an intermediary to help us to resolve the matter and facilitate negotiations for a new joint industrial procedure agreement. That is an important point, especially for my hon. Friends, but I hope for all hon. Members. Ed Sweeney, who is well known from Amicus to many people, and is now the chairman of ACAS, was appointed to undertake the work.
Ed Sweeney reported on the matter. I decided that I should wait until he had reported to both sides before coming to the House. Copies of his report are available on the website and I know that many colleagues have read it. He lays down a road map for far better industrial relations in the Prison Service. He does not propose at this stage to have no statutory protection against industrial action. Paragraph 4.16 of the report says that, of course, he is aware of the POA’s rights and its position. It states:
“This is a clear policy position from POA. However, given the state of employment relations in the Prison Service, I do not believe at this point in time it will be possible to meet this policy position of the POA. Employment relations in the Prison Service actually mitigate against meeting this policy consideration as does the absence of any form of minimum cover arrangements.”
He goes on to say that there are minimum cover arrangements in, for example, the fire service and the ambulance service, and that they have worked satisfactorily. He suggests that, after a successful agreement and two years of stability, discussion should take place between the Prison Service and the POA with a view to establishing minimum cover arrangements instead of a statutory ban. I committed myself to that in the House on Monday.
John McDonnell: I apologise to my right hon. Friend for not being able to remain for the rest of the debate, but I have an Adjournment debate in Westminster Hall on police pay—another uncontentious issue.
The whole House will understand the circumstances in which my right hon. Friend found himself in August. That is why mediation by the TUC, with Ed Sweeney bringing all sides together and developing a process through agreement, was welcomed by all parties. However, we now have the memorandum, dated 4 January, from Ed Sweeney. It reads:
“Dear All,
As you know, a couple of weeks ago I sent you a draft copy of my proposals”—
“arising from the review that I have been undertaking over the past few months and we are due to meet on January 24.”
The parties have only just seen the proposals. A meeting will take place on 24 January, yet we are now souring the process by precipitate action in introducing the new clause, which builds on the distrust that already existed before September in the POA and the Prison Service generally about the Government’s intentions. Does my right hon. Friend believe that it was wise to introduce the new clause now? Would it not have been better, if necessary with the agreement of all parties in the House, to introduce emergency legislation if no resolution was found through discussion?
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