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The Minister is totally inaccurate in saying that it is open to anybody who is a dependant of one of those people to apply for asylum in their own right. We see what happens; they are kept indefinitely on the hook. No solution has been made in any of the three cases that have come to my attention where spouses have done what the Minister advised. The appropriate response is not for the UNHCR to challenge the decision to exclude, as suggested by the noble Lord. The UNHCR does not intervene in individual cases and, as far as I can see, the only way in which the decision to designate under these clauses could be challenged is by judicial review. There is no right of appeal, which is one of the most obnoxious features of the whole system. However, we shall obviously not win this argument this evening, so I shall come back to it on Report.
Clause 182 [“Foreign criminal”]:
[Amendment No. 171 not moved.]
[Amendment No. 172 not moved.]
6.30 pm
Clause 189 [Amendment of section 127 of the Criminal Justice and Public Order Act 1994]:
Lord Graham of Edmonton moved Amendment No. 173:
The noble Lord said: I speak to the amendments in my name on the Marshalled List. I assume that they will be taken together, as they are of a piece. I begin by repeating my previously declared interests of past associations with the Prison Officers Association, all of which were honourable and constructive.
My approach in these matters is very much guided by the manner in which the Bill has progressed so far. A convention that grew up some years ago has been followed sensibly: the Committee stage is invariably used by colleagues to propose amendments but not necessarily to press them, which provides the Government with an opportunity to reflect on what has been said. My amendments are perfectly clear and simple. They would remove unnecessary words that could be inflammatory and counterproductive.
The interests here are clear and stark. Differences emerged from the past and caused the Government to propose the amendments that were passed in another place. I remind the Committee of the manner in which this was done. Under Section 127 of the Criminal Justice and Public Order Act 1994, these words appeared:
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That is quite clear. Whether it is acceptable is another matter, but that was the situation. Along came the form of words to which the prison officers take exception and on which I plead for the Government to reflect. The POA has not consented to the words that appear in the Bill. I ask the Minister to listen carefully to the words used in another place by David Anderson MP, who said:
“In the view of the prison officers and many Labour Members, however, the wording of the second part of new clause 36(3) is actually a road block. The reference to ‘any other action likely to affect the normal working of a prison’ would be a catch-all, whereby people would be guilty of a criminal offence for any simple thing, if such action is defined by the management”.—[Official Report, Commons, 9/1/08; col. 332.]
The Government must justify those additional words, as I hope the Minister will when he replies to this debate. Industrial action is capable of interpretation and misinterpretation, but there are contexts in which it has been defined. I ask the Minister to look at them carefully. There is no definition of “normal working”, so the Minister owes it to the Committee and the POA to go a bit further in this debate than previously.
The POA has not consented to the new form of words. I ask the Minister to take careful note of three matters. Industrial relations history is quite clear and understood on this. Hitherto, it had rested on discussion, negotiation and agreement in which certain aspects were brought to light. First, in a memorandum of agreement, all aspects of the memorandum had been separated out. There was no dubiety or ground for misinterpretation. Secondly, there was an understanding that all aspects of the agreement would be adhered to by both sides. The Minister will be well aware that this is the bone of contention. Thirdly, neither the Prison Service nor the Government have adhered to the agreement. The POA then gave notice to terminate the agreement.
The problem with the amendment to the agreement in the Bill as it stands is that it goes beyond what is currently considered as industrial action. I ask the Minister to listen carefully to what the noble and learned Lord, Lord Hoffman, said when dealing with this matter in respect of agreements that had been previously pronounced on by Lord Denning, in Burgess and others v Stevedoring Services Limited in 2002:
“It seems clear from the examples which he gave that he had in mind that employees may legitimately perform their duties in a way which does not suit the employer (like keeping a train waiting while they check the engine) if they have a bona fide reason but not if their purpose is to be wilfully obstructive. But that does not mean that they are in breach for refusing to do things altogether outside their contractual obligations (like going to work on a Sunday) merely because they do not have a bona fide reason for refusal”.
The Minister and his colleagues are spatchcocking into legislation a form of words that I have heard described as “belt and braces”, in that they want not merely to deal with the action of strikes or industrial action as we have known it before, but to tighten every screw.
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If the Government are intent on curtailing the human and trade union rights of prison officers in both the private and public sectors, they have a duty to ensure that compensatory mechanisms are put in place that are acceptable to both management and staff alike. A deal was done, which refers to the recommendation of the PRB. Having seen that agreement, the Government said that they were acting on,
- “overriding economic considerations in the national interest”.—[Official Report, Commons, 7/1/08; col. 52.]
That was a decision, a form of words and an action by the Government arbitrarily imposed on a previously agreed formula that would have maintained industrial peace in the Prison Service. I simply ask the Government why that was felt necessary. The Government are entitled to come to a view arbitrarily to abrogate the agreement, but amendments later this evening may well have a bearing on the manner in which these things are dealt with in future.
On 7 January, the Secretary of State for Justice, Mr Jack Straw, said that the Government,
- “will always be minded to accept the recommendations of pay review bodies, except where there are overriding economic considerations in the national interest”.—[Official Report, Commons, 7/1/08; col. 52.]
That was an arbitrary action, which the POA and I consider to have led to the present difficult situation. I am told by the POA that as a result of the action taken—the staging—the highest-paid uniformed staff, the principal officers, have lost £182 since April 2007 and the lowest-paid operational support grades have lost £3 per week or £150 per year. Those are not enormous losses, but they are seen by those who suffer them as deleterious and unnecessary.
It is my job to remind the Minister of what he knows, which is that this issue does not just relate to the POA. It can spread to other trades unions. He will be aware that when introducing the TUC report Six Million Pay Cuts,Brendan Barber, the general secretary of the TUC, said that,
- “the arguments for this draconian policy simply do not stand up. Public sector pay does not cause inflation and holding it back does nothing to fight inflation caused elsewhere. Its only economic impact is on the living standards of public servants”.
I know that the Minister will quote in aid, as he is entitled to do, the actions that took place on 29 August last year. I simply remind him and the Committee that the prison officers took action as a result of their justifiable anger at the previous actions of the Government. I also remind the Committee that, while that industrial action was taking place, the staff did not simply leave work and go home but remained at the prison en masse. I have visited many prisons in my time and they are a closed estate. The prison officers remained within it and were available. The present policy is—to use another cliché—to use a sledgehammer to crack a nut when it comes to industrial relations within the Prison Service by proposing legislation even more draconian than that proposed by a previous Conservative Government.
The basis for aggravation is contained in gratuitously spatchcocking in a new definition of industrial action. I remind the Government that this
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The previous agreement rested on the mistaken belief that the Government and the Prison Service management board would provide a fair playing field on which disputes would be settled without the need to resort to industrial action and that the recommendations of the Prison Service Pay Review Body would be binding. The amendment would remove a matter causing great, explosive anger inside prisons and, more widely, its acceptance would be seen as a gesture by the Government showing that they are listening to the concerns of prison officers. The offending words serve no purpose whatsoever. They could be removed without any effect on the policy of the Government on the Prison Service.
We all know that the situation in prisons is such that the words “explosive”, “dynamite” and “mayhem” come readily to mind. Prison officers are as much prisoners inside a prison as the prisoners. They do a dirty, dangerous and difficult job. The Minister should be left in no doubt that they are angry and dismayed at this action by a Labour Government on a trade union at this time. I very much hope that the Government will be able to say something tonight that will give the POA hope that discussions, not in Europe or anywhere else, but here in Parliament can resolve this matter. I do not expect it to be resolved across the Chamber this evening, but I hope that the Minister and his colleagues will have other opportunities for good sense to prevail before 8 May when certain actions immediately follow. I beg to move.
6.45 pm
Lord Thomas of Gresford: I am sure it was far better for industrial relations between prison officers and the Government to be governed by an agreement as opposed to the way in which things happened previously. Now that the agreement is coming to an end and there is some controversy about it, there is something distasteful about the Government ratcheting up their bargaining position and weakening that of the Prison Officers’ Association. The noble Lord, Lord Graham, does not seek to remove this clause altogether and accepts that withholding services as a prison officer is an appropriate matter for the Bill. What he does object to are the words,
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The justification the Government have advanced for including a probation against withholding services as a prison officer—striking—is that they are concerned about the welfare of the prisoners. I have two questions for the Minister. First, in what way would the welfare of the prisoners be at risk if the words that the noble Lord, Lord Graham, wishes to be excluded were excluded? What effect would that have? Secondly, why is it necessary to have a negative resolution to suspend or revive the operation of Section 127 and why would it not be better, rather less distasteful and impose less pressure on the Prison Officers’ Association to accept the noble Lord’s amendment that Section 127 should not be brought into effect unless there was an affirmative resolution of both Houses? That seems to be a fair way of dealing with the matter.
I appreciate that strike action in a prison is very dangerous, but I can confirm the assertion made by the noble Lord, Lord Graham, that prison officers collectively remained in the vicinity of the prisons at the time of the strike action two or three years ago because I happened to be present at a prison in Liverpool. The prison officers gathered in the forecourt of the prison and remained there just in case there were any problems that required their intervention. The noble Lord seems to have proposed a formula that accepts the necessity to ban strike action but questions why anything further should be banned. I agree that the legislation should not be pushed through simply to weaken the bargaining position of prison officers.
Baroness Butler-Sloss: I was somewhat concerned to hear from the noble Lord, Lord Graham, that the wording in subsection (3)(1A),
might include those who work in the courts. That is an extremely broad use of words. What does the Minister think is intended to be covered by the words objected to by the noble Lord, Lord Graham? If his interpretation is conceivable, the Minister might consider whether those words are not far too broad.
Lord Ramsbotham: I was very interested in all that the noble Lord, Lord Graham, had to say and, if I may say so, the restraint with which he expressed those views. My experience in this area is that there is too much confrontation between the sides and not enough conciliation and reasoned talking.
It always seemed to me that one of the big problems in the Prison Service was that there was not a full understanding of the fact everything will not be right for prisoners unless things are right for staff. I remember writing as the subtitle of a report on one prison, “A Staff Neglected”, because the staff needs had been neglected so much that it made it almost impossible for them to carry out their task.
I realise that the amendment being discussed is not the one to come later, which refers to the question which gave rise to the action in August on the staging of a pay rise. I remember being extremely angry when that happened in the Army, because the staging did
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Recently, the problems faced by the Armed Forces have been expanded into something which I never heard of during my service, which is a so-called covenant between the Armed Forces and government. There is a definite feeling that that covenant, whatever it is, has been broken by the fact that the Government have appeared not to be supporting the Armed Forces in the way that they might.
I believe that, on the basis of that, the Prison Officers’ Association feels that the covenant between it, the Government and the Prison Service has been broken. It seems to me that it has been broken in an entirely avoidable way. I therefore very much hope that the Government will listen to the wise words of the noble Lord, Lord Graham, and not take precipitate action now but think very carefully about what he said and think through the meaning of the phrases that he has questioned, so that precipitate action on 8 May can be avoided. Such action would be unfortunate but, for the long term, it is hugely important that the relationship between the Prison Officers’ Association, the Prison Service and the Government must be a covenant felt to be fair by all sides.
Lord Hunt of Kings Heath: It is a great honour to respond to my noble friend Lord Graham. He is right that Committee is an opportunity to probe and reflect. I assure him that neither I nor the Government have any intention to inflame the situation. I have a great deal of respect for both the Prison Service as a whole and for individual prison officers. In your Lordships' House, I have paid tribute to the staff on a number of occasions, and acknowledged what I consider to be a great deal of improvements that have been made during the past few years, which is testimony to the dedication of the staff who work within our Prison Service.
I agree with the noble Lord, Lord Ramsbotham, that we must not adopt a confrontational approach. I agree when he implies that the more that staff feel ownership of the direction of the service, the more likely it is that they will co-operate. I agree with all those things but—I say to the noble Lord, Lord Thomas of Gresford, that I will come to the issue of welfare—ultimately, we have to ensure the safety of our prisons. That is why the clause is in the Bill. We face a very serious situation and we need to have the safeguards in the Bill.
The issue goes back to the Government's decision to stage public sector pay awards. A decision to stage awards is one not to be taken lightly. It was a difficult decision, but it was in line with our wider economic policy and applied to recommendations from all pay review bodies other than those governing the Armed Forces.
It is also worth me saying that since its inception, the pay review body has recommended significant increases in prison officer pay. In the past three years,
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I do not underestimate in any way the pressures on our staff in the Prison Service. Of course it is important that they are given every consideration. However, it is inescapable that the strike action on 29 August, on which virtually no notice was given, had an immense impact on the operation of the Prison Service. Not only did it raise issues to do with the welfare of prisoners, it also led to the cancellation of court appearances, transfers of prisoners and the extended use of police cells to accommodate those prisoners who could not be received into prison in the evening of that industrial action.
I say to my noble friend Lord Graham, who spoke with great experience and passion, that of course the Government hope to be able, through discussion—the Ed Sweeney talks, as they have become known—to bring about a way forward. It is a difficult process, but all parties are persevering with the talks at the moment.
At a special delegate conference on 19 February, the Prison Officers’ Association passed a motion that instructs that any further agreement must not constitute a no-strike agreement. It is very unlikely that an agreement that includes protections against industrial action would be reached before the current agreement expires on 8 May 2008. Even if this is not achieved, it is in the interests of all parties that agreement is reached on a new dispute-resolution process. Yes, we are anxious to ensure that these discussions have a productive outcome, but at the same time we must have the safety of what is in the Bill to ensure that the welfare and safety of prisoners are maintained from 8 May onwards.
7 pm
My noble friend’s amendment would restrict the definition of industrial action to withholding services as a prison officer, whereas, as noble Lords have pointed out, the current wider definition of industrial action in the Bill has been subject to considerable discussion. My right honourable friend the Justice Secretary agreed to consider the wording of that definition in the other place, but as it is highly unlikely that the Prison Officers’ Association will sign up to any voluntary agreement that includes a no-strike clause, we do not feel able to move away from the current drafting.
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