Prohibition on industrial action
by prison officers
2.48 The Bill reintroduces a statutory prohibition
on industrial action by prison officers, but in a considerably
wider form than when it was first introduced in 1994. The prohibition
is not merely on strike action: "industrial action"
is defined to include the withholding of services as a prison
officer "and any other action likely to affect the normal
working of a prison."[114]
2.49 We set out the relevant human rights law framework
for assessing the compatibility of this provision in our last
Report on the Bill.[115]
In short, the right of union members to take collective action
to protect their interests is an important aspect of the right
to freedom of association in Article 11(1) ECHR, but Article 11(2)
ECHR expressly provides that Article 11 "shall not prevent
the imposition of lawful restrictions on the exercise of these
rights by members of the armed forces, of the police or of the
administration of the State." Although prison officers are
clearly "members of the administration of the State,"
Article 11(2) does not provide the State with carte blanche
to impose whatever restrictions it wishes on the association rights
of those involved in the administration of the State. To be "lawful,"
such restrictions must still satisfy the usual requirements, including
that they be necessary in a democratic society and proportionate
to the legitimate aim it is sought to achieve.
2.50 The Government's justifications for the measure
are the risks posed by such action to both public safety and the
welfare of prisoners. In our last Report on the Bill we acknowledged
that the evidence referred to us by the Government of the consequences
of the industrial action taken by prison officers in August 2007
certainly suggests that such action can have very serious consequences
for the welfare of prisoners, many of whom have mental health
problems, require regular medication or are otherwise vulnerable.
We considered that the duty on the State to ensure the safety
and well-being of prisoners is a fairly compelling consideration
capable in principle of justifying some restriction on
the right of prison officers to take some forms of collective
action to protect their interests. The question, we said, is whether
the restrictions contained in the Bill are proportionate to the
pursuit of that aim and we were not yet in a position to reach
a view about the proportionality of the measure because we had
not yet had an opportunity to ask certain questions of the Government.
2.51 We subsequently asked the Minister two questions
to enable us to reach a view on proportionality.[116]
First, why is it necessary, in order to protect the welfare of
prisoners, to prohibit all forms of industrial action by prison
officers rather than just strike action? Second, has the point
of last resort been reached, or is there still a possibility that
a voluntary agreement with the Prison Officers Association could
be reached?
2.52 The Government in its response accepts that
restrictions on the rights of essential workers to take industrial
action must be "done in a measured and proportionate manner."[117]
It argues that this is precisely what the Clauses do: they represent
a careful balance of the rights of prison officers to take industrial
action with the need to ensure the safety of prisoners, other
staff and the public. The constraint on all forms of industrial
action by prison officers is said to be needed "to cover
instances of work to rule and the withdrawal of goodwill."
The Government says that action short of strike action would:
- Limit the ability to provide
the most fundamental amenities for prisoners such as food and
medication;
- Undermine the wider operation of the criminal
justice system, in which timely and efficient transfer of prisoners
is essential; and
- Compromise the work of third party providers
including the NHS.
2.53 The Government says that "collectively"
this would "rapidly destabilise the prison estate and the
wider Criminal Justice System, and has the potential to incite
prisoner unrest - creating a volatile environment and putting
the safety of prisoners, staff and the wider public at risk."
The risk feared by the Government is said to be "very real,"
and evidenced by industrial action short of strike action taken
in the early 1980s and November 1993, which prevented, or would
have prevented if not restrained by injunction, the reception
of new prisoners into prisons, causing control problems and threatening
riots.
2.54 On the possibility of reaching a voluntary agreement,
the Government states that it is extremely unlikely that any such
agreement will be reached in the foreseeable future, in light
of the POA special delegates' conference voting on 19 February
overwhelmingly in favour of a motion not to accept any agreement
containing a no-strike provision.
2.55 We accept that industrial action short of strike
action by prison officers is capable in principle of putting the
safety of prisoners, staff and the wider public at risk. We also
acknowledge that human rights law itself imposes onerous positive
obligations on the State to ensure that vulnerable people in the
State's care do not come to harm, including self-harm, as our
and our predecessor Committee's work on deaths in custody in particular
has consistently pointed out.[118]
We therefore accept in principle that a prohibition on industrial
action short of strike action is capable of being a justified
restriction on the right to freedom of association of prison officers
if it is shown by clear evidence to be both necessary and proportionate
to the risk to safety.
2.56 We note, however, that, as presently drafted,
the Bill goes well beyond the prohibition of industrial action
short of strike action which puts the safety of prisoners, staff
and the wider public at risk. It prohibits "any other action
likely to affect the normal working of a prison." In our
view, there is a considerable gap between action likely to affect
the normal working of a prison and action likely to imperil safety.
Even allowing for chronic overcrowding in UK prisons, we do not
accept that any "action likely to affect the normal working
of a prison" can automatically be equated with action putting
safety at risk because it rapidly destabilises the entire prison
and criminal justice system. We are also struck by the fact that
the two actual examples relied on by the Government of the risk
to safety being "very real" date from the early 1980s
and 1993. No more recent examples are relied upon to demonstrate
the necessity of the power.
2.57 We therefore
conclude that, although a prohibition on industrial action short
of strike action is capable of being a justified restriction on
the right to freedom of association of prison officers, the extent
of the prohibition currently proposed in the Bill, which includes
any action likely to affect the normal working of a prison, is
disproportionate. We recommend that the Bill be amended by deleting
the reference to action likely to affect the normal working of
a prison and replacing it with "action likely to put the
safety of prisoners, staff or the public at risk":
Clause 137, Page 99, Line 17, leave
out "affect the normal working of a prison" and insert
"put the safety of prisoners, staff or the public at risk."
Disclosure of convictions of
sex offenders
2.58 Clause 139(1) inserts a new Section into the
Criminal Justice Act 2003 requiring authorities discharging MAPPA
(Multi-Agency Public Protection Arrangements) to consider whether
to disclose information to members of the public about the previous
convictions of child sex offenders they are managing and to record
the decisions made. It also creates a presumption in favour of
disclosure where an authority reasonably believes that an offender
poses a risk "of causing serious harm to any particular child
or children or to children of any particular description"
and disclosure is necessary for the purpose of protecting them
from such harm. This Clause was inserted at a very late stage
in the Commons, and we were not therefore able to scrutinise it
for human rights compliance in our previous Report on the Bill.
2.59 During debates in the Lords, the Minister expressed
the Government's intention as follows:
We wish to ensure the effective protection of children
from sex offenders while wishing to guard against the perils of
inappropriate and unduly widespread disclosure … Our aims
… are to extend the use of controlled disclosure where it
is an appropriate and necessary response to a risk of serious
harm to a child or children to ensure that there is consistency
… in the practice of disclosure and to ensure that the decision
to disclose results from a formalised and auditable process.[119]
2.60 In the Explanatory Notes, the Government accepts
that the disclosure of previous convictions to members of the
public engages an offender's rights under Article 8 ECHR (respect
for private, home and family life) but asserts that any disclosure
must satisfy the Article 8 requirements, as set out by the Court
of Appeal in ex parte AB.[120]
Furthermore, it suggests that putting the requirement to consider
disclosure on a statutory footing, will encourage "more explicit
recording of human rights considerations."[121]
2.61 We wrote to the Minister to ask how the duty
to consider disclosure meets the Article 8 ECHR requirement that
disclosure only be made where it is proportionate to a legitimate
aim and necessary. We asked how, beyond proposed new Section 327A(5)(b),
which permits the imposition of conditions to prevent subsequent
disclosure, the Government intends to ensure that information
is not disclosed by members of the public to other third parties.[122]
2.62 In reply, the Minister noted that the duty to
consider disclosure does not establish an obligation to disclose
and that, even where the presumption criteria are met, the authority
will have to be satisfied that making a disclosure will not breach
Article 8 ECHR. He stated:
Considering that for the presumption to apply it
will have been established that the disclosure is necessary to
protect a child from serious harm, it follows that any interference
with an offender's rights under Article 8 will be necessary to
prevent crime or protect the rights of others. However, the responsible
authority will have to consider whether the interference is proportionate.
Again, given that the offender will have been found to pose a
risk of serious harm to a child which could be prevented by the
disclosure, it is likely that disclosure will be proportionate,
but the individual circumstances of the case will need to be considered
and where the risk to the offender and/or to other children in
making the disclosure outweighs the rights of the child at risk,
the responsible authority would be able to, and indeed should,
refuse to make the disclosure.[123]
2.63 The Minister noted that guidance would be amended
to explain this position to MAPPA authorities. During the Committee
debates in the Lords, concerns were expressed about the potentially
negative consequences of disclosing convictions of sex offenders
to members of the public, including a lower level of registration
of sex offenders, the inadvertent identification of the offenders'
victims (given the high proportion of abuse within the family)
and the consequent dissuasive effect on families from reporting
crimes committed by relatives.[124]
We share
these concerns, which appear to us to have the potential to undermine
the overall intention of the new Clause, namely child protection.
We recommend that guidance make clear that authorities must consider
whether disclosure would indirectly identify the victim(s) of
a sex offender.
2.64 In correspondence, the Minister
told us that existing civil and criminal remedies could be invoked
to deal with impermissible disclosures.[125]
He did not, however, point to any particular safeguards which
would ensure respect for the Article 8 rights of the individual
subject of the disclosure or his or her family. During debate
in the Lords, the Minister accepted that if a breach of the conditions
under which disclosure was made took place, the Clause did not
provide for a specific penalty.[126]
Whilst we accept that civil
or criminal remedies could provide limited redress against impermissible
disclosure, including for breach of Article 8 ECHR, at that point
the damage to an individual's privacy, and to his or her family
and home life, would have been done. We recommend that there be
a presumption in favour of notifying an individual in advance
that the authorities intend to make a disclosure and provide an
opportunity for an individual to make representations as to whether
or not the disclosure should take place, and the manner in which
it would be made.
72 Fifth Report, Session 2007-08, Legislative Scrutiny:
Criminal Justice and Immigration Bill, HL Paper 37, HC 269. Back
73
Appendix 6. Back
74
Appendix 7. Back
75
Fifth Report, Session 2007-08, para. 1.50. Back
76
Clause 63(3). Back
77
Clauses 63(6) and (7). Back
78
HL Deb, 3 March 2008, Col. 894. Back
79
On the possession of extreme pornographic material. Government's
response published 30 August 2006. See also House of Commons Library
Research Paper, The Criminal Justice and Immigration Bill,
07/65, 9 August 2007, p. 54 for a summary of the responses. Back
80
Quoted in House of Commons Library Research Paper, The Criminal
Justice and Immigration Bill, 07/65, 9 August 2007, p. 55 Back
81
EN, para. 1156. Back
82
EN, para. 1157. Back
83
EN, para. 1158. Back
84
Fifth Report, Session 2007-08, Appendix 3, para. 30. Back
85
Ibid, para. 32. Back
86
The evidence of harm to adults relating to exposure to extreme
pornographic material: a rapid evidence assessment, Ministry
of Justice and the Department of Health, 28 September 2007. Back
87
HC PBC Deb, 16 October 2007, Col. 31. Back
88
Rapid Evidence Assessment, p. iii. Back
89
HL Deb, 3 March 2008, Col. 904. Back
90
Ibid, Col. 894. Back
91
Ibid, Col. 906. Back
92
Ibid, Col. 908. Back
93
In this respect, we agree with the minority in the House of Lords
in R v Brown [1993] 2 All ER 75 (Lords Mustill and Slynn). Back
94
Appendix 6. Back
95
Appendix 7. Back
96
Fifth Report, Session 2007-08, at paras 1.66-1.73. Back
97
Appendix 6. Back
98
Clause 75(5). Back
99
Appendix 7. Back
100
McCann v UK (1996) 21 EHRR 97 at para. 200. Back
101
McCann at para. 134. Back
102
HC Deb, 9 January 2008. Back
103
Fifth Report, Session 2007-08, paras 1.56-1.60. Back
104
HL Deb, 5 March 2008, Cols. 1118-1147. Back
105
E.g. Briefing by the Lawyers' Christian Fellowship, February 2008. Back
106
Report of the Special Rapporteur on freedom of religion or belief
(Asma Jahangir), A/HRC/7/10/Add.3. (7 February 2008). Back
107
HL Deb, 5 March 2008, Col. 1175. Back
108
Part 7. Back
109
HL Deb, 5 March 2008, Col. 1187. Back
110
Appendix 7. Back
111
Now Clauses 118 and 119. Back
112
Now Clause 118(1)(c). Back
113
Appendix 7. Back
114
Clause 137(3), inserting new subsection (1A) into section 127
of the Criminal Justice and Public Order Act 1994. Back
115
Fifth Report, Session 2007-08, paras 1.127-1.131. Back
116
Appendix 6. Back
117
Appendix 7. Back
118
See e.g. Third Report, Session 2004-05, Deaths in Custody,
HL Paper 15-I, HC 137-I; see also Eleventh Report, Session 2007-08,
The Use of Restraint in Secure Training Centres, HL Paper
65, HC 378. Back
119
HL Deb, 12 March 2008, Cols. 1519-1520. Back
120
EN, para. 1254. R v Chief Constable of the North Wales Police,
ex parte AB [1998] 3 All ER 310. Back
121
EN, para. 1256. Back
122
Appendix 6. Back
123
Appendix 7. Back
124
HL Deb, 12 March 2008, Col. 1517. Back
125
Appendix 7. Back
126
HL Deb, 12 March 2008, Col. 1523. Back
