The Ministry of Justice v Prison Officers Association (POA)

On 29 August 2007 large numbers of prison officers went on strike. They did so because they were dissatisfied with the pay award made to them for the year 1 April 2007 to 31 March 2008. At a hearing which ended at 1.20pm on 29 August Ramsey J made an Order against the Defendant the substance of which was in the following terms: -

“1.

The Respondent must not, whether by any official, officer, servant, agent or local Branch, or otherwise howsoever:

1.1

Induce, or authorise or support any form of industrial action (including strike action) by its members which will have the effect of disrupting the operations of the Prison Service in England and Wales; and/or

1.2

Induce, persuade or procure any of its members to withhold their services

2.

The Respondent shall forthwith communicate a statement in writing to all of its members to the effect that local branches or individuals members shall not take any form of industrial action and/or withhold their services and that the current industrial action must end immediately.”

The sequence of events leading to the strike and the Order made by Ramsey J is as follows. On 17 April 2001 the Prison Service (Pay Review Body) Regulations 2001 came into force. By Regulation 2 there was established a body known as the Pay Review Body (herein after referred to as PRB).This body was constituted to examine and report on such matters relating to the rates of pay and allowances to be applied to the Prison Service in England and Wales, and Northern Ireland as may from time to time be referred to it by the responsible Secretary of State. Regulation 8 provides that the Secretary of State who has received a report from PRB:

“may determine the rates of pay and allowances to be applied to the Prison Service in England and Wales, and Northern Ireland, in accordance with the recommendations of the Pay Review Body, or makes such other determination with respect to the matters in that Report as he thinks fit.”

Some days prior to the coming into force of the Regulations the predecessors of the Claimant and the Defendant entered into a “Voluntary Agreement.” In the remainder of this judgment I will use the word Claimant to mean not just the Claimant in these proceedings but also its predecessors in title under any agreements with the Defendant and any Government Department responsible for the Prison Service. The Agreement contained what may be termed, colloquially, a “no strike clause” which prevented the Defendant from organising industrial action.

In due course this agreement came to an end. However on 11 November 2004 the Claimant and the Defendant entered into an agreement entitled “Joint Industrial Relations Procedural Agreement” (herein after referred to as “the JIRPA”). I will refer to some of its provisions in more detail later in this judgment but it suffices, at this stage, that I say that it was subject to or incorporated the following provisions: -

“The POA agrees that it will not induce, authorise or support any form of industrial action by any of its members employed in the Prison Service relating to a dispute concerning any matter, whether covered by this agreement or otherwise. Both parties will use their best endeavours to prevent any form of industrial action. Nothing in this agreement shall prevent the POA from consulting with its members and assessing their view whether by ballot or any other means.”

From its inception, on an annual basis as I understand it, PRB has made recommendations as to the appropriate rate of pay for prison service employees. No doubt, over the years, the recommendations of PRB and the actual pay award for any given year have been met with varying degrees of enthusiasm by the members of the Defendant.

In March 2007 PRB recommended that prison officers be given a pay increase of 2.5% to be introduced with effect from 1 April 2007. The Claimant decided to implement the pay increase in two stages; in April 2007, an increase of 1.5% was awarded, with a further 1% in November 2007.That meant, overall an annual rise of 1.9% in the first year.

It is an agreed fact that the possibility of phasing the pay award for 2007/2008 had never been raised before PRB by either the Claimant or the Defendant.

On 8 May 2007 the Defendant gave 12 months notice to terminate the JIRPA. The notice was given lawfully and, in consequence, the JIRPA will expire on 8 May 2008.

Between 30 July and 15 August 2007 the Defendant conducted a ballot of its members on whether or not to accept the staged pay award for 2007. The ballot was not conducted in accordance with the requirements contained within Part V Trade Union and Labour Relations (Consolidation) Act 1992.

On 22 August 2007 a Mr Mark Freeman on behalf of the Defendant informed a Mr David Frattaroli of the Prison Service of the outcome of the ballot which was that of the 12,827 ballots returned 1,610 had been in favour of the 2007 pay award and 11,162 against. It is worth noting that the total number of ballots issued was 14,630.

On 29 August 2007, at 6.15am, Mr Moses, the Chairman of the Defendant, spoke to Mr Paul Carroll, Deputy Director of the Prison Service Human Resources Directorate and informed him of the Defendant’s intention to call on its members to take strike action with effect from 7.00am that same day. At 7.00am strike action began across the vast majority of the Prison Service establishments in England and Wales.

I have been provided with a transcript of the judgment of Mr Justice Ramsey. He took the view that the Claimant was entitled to the Order I have set out above because it was obvious that the Defendant was in breach of the clause of the JIRPA which I have also set out. Alternatively, Ramsey J found that there was at the very least an arguable case that the Defendant was in breach of the clause and the balance of convenience heavily favoured the grant of an injunction.

Following the hearing before Ramsey J the Claimant complied with various undertakings which it had given the Learned Judge and which called for compliance before trial.

I am now called upon to determine whether or not the Order of Ramsey J (which, in effect, was continued by consent by Saunders J on 19 October 2007) should continue until 8 May 2008. It is common ground that no Order made by me should subsist beyond that date since, as I have said, on that date the JIRPA will expire.

When he opened the case, Mr Bowers QC on behalf of the Claimant presented it on two bases: He submitted, firstly, that the Claimant was entitled to an injunction by reason of the breach of the JIRPA on 29 August 2007 and the unwillingness of the Defendant to rule out the possibility of a further breach or further breaches of the JIRPA prior to 8 May 2008; he submitted secondly that the Defendant’s failure to comply with some of the provisions of the 1992 Act prior to 29 August meant that their action in calling the strike on 29 August 2007 was tortious and there was a likelihood of a repetition of the tort. Mr Hendy QC, on behalf of the Defendant, contended that there was no evidence upon which I could conclude that there was a reasonable prospect of a repetition of the tort. He said that because a tort would be committed only if the requirements of the 1992 Act were not met and Mr Hendy QC argued there was no basis upon which I could properly conclude that, in the future, the Defendant would fail to comply with the requirement of the 1992 Act.

It seems to me that the issue of whether or not an injunction should be granted upon the basis of tortious conduct is very much secondary to the position which arises by virtue of the existence of the JIRPA. Since it is obviously desirable that this judgment be produced quickly and since nothing, in the end, will be achieved by a consideration of the claim based in tort I intend to confine the remainder of this judgment to the issue of whether the Claimant is entitled to an injunction on the basis of its past alleged breach of the JIRPA and threatened future breaches of it.

The case for the Claimant is easy to state. It contends that the events of 29 August 2007 constituted a clear breach of the term of the JIRPA to which I have referred. Any further strike action would also be a breach if it was strike action which came into existence under the auspices of the Defendant. It contends that the Defendant has refused to rule out the possibility of further strike action and, accordingly, an injunction is now necessary to restrain conduct which would be a clear breach of contract. The Claimant acknowledges that I have discretion about whether or not to grant an injunction but submits that all the factors which are relevant to the exercise of that discretion point towards its grant.

In the Skeleton Argument prepared by Mr Hendy QC and Ms Tuck one point is taken in opposition to the grant of the injunction. The point taken by them is that in the exercise of my discretion I should refuse the injunction claimed. They make that submission on the ground that an injunction is an equitable remedy and, in modern parlance, an equitable remedy should not be granted to a Claimant if its conduct is or has been such that the remedy should be withheld. To revert to more traditional language the Defendant alleges that the Claimant does not have “clean hands” and, in consequence, the remedy which it seeks should be withheld.

At the close of his submissions Mr Hendy QC produced a helpful written summary of the basis upon which the Claimant should be deprived of the relief which it seeks in these proceedings. The starting point is that there is a body of international law which recognises the right of an employee to strike albeit that such a right is subject to limitations which vary from country to country and in respect of which each has a margin of appreciation. In relation to appropriate classes of employees such a right can be prohibited. Employees who work in essential public services are sometimes prohibited from striking and, of course, Prison Officers are employees who work in an essential public service. However, if public workers are so prohibited the body of international law to which Mr. Hendy QC refers requires that “compensatory measures” are put in place. These compensatory measures are said to be the provision of an independent means of fixing terms of employment (including pay) and an acceptance that the determination thus made should be binding at least save in exceptional circumstances.

In this case Mr. Hendy QC submits that the Claimant has intentionally refused to provide adequate compensatory measures as recompense for the prohibition upon striking which is contained within the JIRPA. In particular he submits that the PRB is not independent and its determination is not binding. Consequently, the submission is made that the Claimant’s conduct in deliberately withholding adequate compensatory measures is such that its claim for an injunction should be refused. I should also record that the Defendant also asserts that the Claimant has “breached” the bargain behind JIRPA.

As will be apparent from what I have said there is no dispute in this case that the Defendant was in breach of the JIRPA by its conduct on 29 August 2007. Further the Defendant does not seek to argue that it has made no threat to break the JIRPA between now and 8 May 2008. The Defendant does not seek to argue that its actual breach and/or its threatened breach either was or could be justified by any breach of the JIRPA on the part of the Claimant. This is not a case in which the Defendant has set up any argument to the effect that the Claimant is in breach of the JIRPA in one or more respects and that, therefore, it is entitled to treat the JIRPA as repudiated.

With that summary I turn to consider, in detail the basis of the Defendant’s opposition to the grant of relief.

The principles upon which a Court should act in considering whether it is appropriate to refuse an injunction to restrain a breach of contract on the grounds of the Claimant’s own conduct are accurately summarised in Spry: The Principles of Equitable Remedies (6^th Edition) pages 409 and 410. The principles are encapsulated in the following passage:-

“It is not uncommon to find broad statements that the Plaintiff is not granted an injunction if he does not have clean hands. Properly understood these statements are correct; but they should be applied cautiously, for it is by no means true that a Plaintiff who has acted unconscionably is refused all access to the Court or that he is considered to be beyond protection for all purposes. The Court declines to intervene only if the inequitable conduct in question is shown to have “an immediate and necessary relation” to the relief sought, and the grant of that relief is unconscionable. It has been said that the principles on which the court acts is that protection is denied to the Plaintiff “where the right relied on, and which the court of equity is asked to protect or assist, is itself to some extent brought into existence or induced by some illegal or unconscionable conduct of a Plaintiff”, so the protection for what he claims involves protection for his own wrong: “No Court of Equity will aid a man to derive advantage from his own wrong, and this is really the meaning of the maxim.” These statements are however unduly general, and it is necessary to examine more carefully what conduct the courts of equity regards as unconscionable for the purposes of this rule, so as to preclude the Plaintiff from obtaining the particular relief that he seeks; and it is appropriate to consider separately the different class of cases that have arisen”.

The Learned author of Spry then sets out no less than five categories of cases which illustrate the application of the general principles set out above.

For the purposes of the instant case it seems to me that I would have to be satisfied that (a) the Claimant had engaged in conduct which should be regarded as inequitable, (b) that this conduct has an immediate and necessary relation to the relief sought and (c) looked at in the round it would be unconscionable to grant relief before I could refuse it. In my judgment that approach is entirely consistent with the approach taken by Mann J in Tensator Group Limited and another v Falzon and others [2004] EWHC 3440 (Ch) – see paragraph 21 of the Judgment of that case.

In order to identify the conduct of the Claimant which is said to amount to inequitable conduct it is necessary, first, to set out more of the relevant factual background. Until 1993 the Defendant and its members exercised their right to take and organise industrial action. In Home Office v Evans (18 May 1993, unrep) May J held that since prison officers formally had the powers of constables, they were not “workers” by reason of section 280 Trade Union and Labour Relations (Consolidation) Act 1992 and hence the Defendant was not a trade union pursuant to section 1 of that Act. In consequence prison officers could not be party to a “trade dispute” between workers and their employer, a necessary precondition required by section 244 of the Act in order to obtain the statutory protection under section 219 in relation to organising industrial action.

In the light of the decision in Evans legislation was introduced. Section 126 of Criminal Justice and Public Order Act 1994 was enacted to provide that prison officers had the status of workers under the 1992 Act notwithstanding they had the powers of constables. However, by section 127 of the 1994 Act the right of prison officers to take industrial action was removed. That, of course, had the consequence that the Defendant was prohibited from organising such action.

Section 128 of the 1994 Act provided a power to establish a review body. It was pursuant to this power that the Prisons Service (Pay Review Body) Regulations 2001 were made.

As I have indicated earlier, a Voluntary Industrial Relations Agreement was concluded on 11 April 2001. It is of note that the Voluntary Agreement excluded from its ambit a number of issues which were potentially controversial as between the parties and which, in the ordinary way, might lead prison officers to consider industrial action. One of the matters so excluded was pay. The clause which excluded pay was in the following terms.

“Matters of pay and other related issues, from time to time agreed by the parties, will be determined by the Pay Review Body and will not be eligible for resolution through the IRPA”. (IRPA is a reference to the Voluntary Agreement)

The Agreement, of course, contained a clause which prohibited the Defendant from authorising or supporting any form of industrial action by any of its members and, importantly, that prohibition covered disputes not merely within the terms of the agreement but also disputes outside its terms.

In due course, the Voluntary Agreement was replaced by the JIRPA. As I have said the JIRPA was signed on 11 November 2004. Clause 4 of the JIRPA excluded a number of matters from its ambit. Clause 4(1) excluded all matters which related to the issue of pay for so long as PRB continued to exist.

As is obvious, therefore, since 2001 there have existed successive agreements between the Claimant and the Defendant which have contained a prohibition against the organisation by the Defendant of any form of industrial action. Those same agreements have excluded from their ambit the issue of pay.

It is also to be observed that the JIRPA contained within it detailed mechanisms for resolving the disputes falling within the ambit of the JIRPA. It suffices that I say that ultimately such disputes might be subject of arbitration and the finding of the arbitrator would be binding.

Finally, I should record that the JIRPA was intended to be legally binding and the parties before me accept that it is.

The 2001 Regulations came into force one week after the Voluntary Agreement was signed. As Regulation 8 makes clear it is the Claimant which is responsible for determining rates of pay from time to time albeit, of course, it receives a report from PRB before the determination is made.

No doubt the Voluntary Agreement was concluded in contemplation of the coming into force of the Regulations. It must be the case that the JIRPA was concluded in full knowledge of the ambit and effect of 2001 Regulations.

In the context of English Law, therefore, it seems clear that when, in effect, the recommendation of PRB for the pay award for the year 2007/2008 was not accepted in its entirety by the Claimant it was acting lawfully.

The Defendant asserts, however, that that is too narrow an approach.

The International Labour Organisation (ILO) is an arm of the United Nations which sets international labour standards. The Defendant submits and I have no reason to doubt that the United Kingdom was a prime mover in its foundation. On 17 June 1948 the General Conference of ILO adopted, in the form of a Convention, proposals concerning the freedom of association and right to organise employees. Article 11 of the Convention provides:-

“Each Member of the International Labour Organisation for which this Convention is in force undertakes to take all necessary and appropriate measures to ensure the workers and employers may exercise freely the right to organise.”

The United Kingdom ratified that convention in 1949.

In August 2004 the Defendant challenged the abrogation of it and its’ members right to strike before ILO. A procedure exists within the structures of ILO for the making of such a complaint. The nature of the complaint is best understood by reference to the first two paragraphs of the Written Submissions presented on behalf of the Defendant.

“1.

This is an application to the Committee on Freedom of Association against the Government of the United Kingdom of Great Britain and Northern Ireland on the grounds that the laws of United Kingdom are incompatible with the provisions of ILO Conventions Nos 87 and 98. In particular, it is submitted that the statutory prohibition of industrial action by prison officers, found in section 127 of the Criminal Justice and Public Order Act 1994 constitutes a breach of the right to strike inherent in Convention 87. It is also submitted that no adequate compensatory measures have been put in place whereby prison officers or their union can ensure that their interests are protected in the absence of a right to strike.

2.

Although there are proposals to amend section 127 so that it does not apply to England, Wales and Scotland, the Government of the United Kingdom has reaffirmed its intention to retain section 127 in respect of Northern Ireland. This distinction is justified on the grounds that there is no legally binding no-strike agreement in Northern Ireland the equivalent of that entered into between the POA and the public sector employers in England, Wales and Scotland. The issue also remains of importance to prison officers of England, Wales and Scotland, because the proposals to repeal section 127 for England, Wales and Scotland are premised on the existence of the legally binding no-strike agreement. The threat to reintroduce section 127 could be used to deter the union from terminating the agreement, thus undermining its voluntary nature. Moreover, there is no legally binding no-strike agreement covering prison officers working in the private sector and there is now some doubt as to whether prison officers in the private sector would be included in the proposed exemption from section 127 or whether, like the prison officers in Northern Ireland, they will continue to be subject to section 127. It is submitted that the reintroduction of section 127 or a provision having the same effect would breach Convention 87. It is appreciated that the Committee on Freedom of Association may wish to refer this application to the committee of Experts on the Application of Conventions and Recommendations.”

In its Response to the complaint the Government resisted the Defendant’s contentions. It asserted that prison officers were public servants who exercised authority in the name of the state and who were engaged in essential services and therefore a prohibition on industrial action was justified. It asserted further that adequate protection had been given to prison officers to compensate for the limitation placed upon their freedom of action. In dealing with the issue of compensatory measures the Government’s response was in the following terms so far as it related to the PRB and its recommendations.

“27.2

Although the recommendations of the [PRB] are not binding in law, in practice, they would only be departed from in exceptional circumstances. The practice and procedure of the [PRB] is such that adequate, impartial and speedy conciliation can be, and has been, implemented, leading to a result satisfactory to both parties.

27.3

The statement, at paragraph 36 of the POA’s submissions that “there is no duty on Minister to implement the award promptly or at all”, does not amount to more than a restatement of the point that recommendations of (PRB) are not legally binding. In practice they are complied with. Reference is made by the POA to the decision to implement the 2002 recommendation in two stages, rather than in a single increase. The result of this was that, in principle and in fact, the substance of the recommendation was implemented by the Secretary of State. Budgetary powers remain, out of necessity, with the legislative authority. This resulted in an alteration of the practicalities of the recommendation, but ultimately did not prevent compliance with the terms of the award handed down by the [PRB].”

In paragraph 773 of its decision the Committee of ILO had this to say about the assertion by the Government that although the findings of the PRB were not binding in law in practice they would be departed from only in exceptional circumstances.

“…….. the Committee notes that the Government does not specify which exceptional circumstances might justify the departure from the recommendation of the Pay Review Body. The Committee also observes that the text of Regulations 8 of the Prisons Service (Pay Review Body) Regulations 2001 seems to leave complete discretion upon the Secretary of State as regard the implementation of the recommendations of the Pay Review Body, by providing that “where, following the reference of any matter to them the Pay Review Body had made a report, the Secretary of State may determine the rates of pay and allowances to be applied to the Prison Service in England and Wales, and Northern Ireland, in accordance with the recommendations of the Pay Review Body, or make such other determination with respect to the matters in the report as he thinks fit.” The Committee recalls that as regards the nature of appropriate guarantees in cases where restrictions are placed on the right to strike in essential services and the public service, restrictions on the right to strike should be accompanied by adequate, impartial and speedy conciliation and arbitration proceedings in which the parties concerned can take part at every stage and in which awards, once made, are fully and properly implemented. [see Digest, op.cit.para 547]. The Committee request the Government to initiate consultations with the complainant and prison service with a view to improving the current mechanism for the determination of prison officers pay in England Wales and Scotland. In particular, the Committee requests the Government to continue to ensure that (i) the awards of the Prison Service Pay Review Body are binding on the parties and may be departed from only in exceptional circumstances; and (ii) the members of the Prison Service Pay Review Body are independent and impartial, are appointed on the basis of specific guidance or criteria and have the confidence of all the parties concerned.”

I should also record that one of the aspects of the Defendant’s complaint to the Committee of ILO was that all members of the PRB, including the Chairman, are appointed by the Prime Minister and, to that extent, the Defendant had lost confidence in its impartiality, hence the second request made by the Committee.

The Committee of ILO issued its determination of the Defendant’s complaint in March 2005. On 18 August 2005 the UK Government issued a response to the determination as requested in that an authorised employee of the Departments of Work and Pensions and Education and Skills wrote to an authorised officer of ILO. That part of the letter which is relevant to the resolution of this case is as follows: -

“…………(b) The Government had instructed the Director General of HM Prison Service together with officials at HM Treasury and the Office of Manpower Economics to consult with the Prison Officers’ Association with a view to improving in the current mechanism for the determination of prisons officers’ pay in England, Wales and Northern Ireland on the following basis:

(i)

That, while the recommendations of the Pay Review Body cannot be binding, they will only be departed from in exceptional circumstances, one of which would be on the grounds of affordability (this reflects current practice). It should be stressed that recommended awards are very rarely abated and that the existing administration has never taken such an action;

(ii)

That the independence of the Pay Review Body is achieved by:

(a)

All appointments of members being subject to scrutiny by the Commissioner for Public Appointments; an official accountable directly to Parliament;

(b)

The Director of the Office of Manpower Economics is member of the selection panel, whose approval of the selection criteria brings further independent scrutiny to the process;

(c)

All vacancies being publicly advertised and therefore open to a cross-section of applicants from all aspects of society;

(d)

Selection being by way of a panel whose recommendations for appointment must be approved by the Home Secretary, the Chief Secretary of the Treasury and the Prime Minister;

However, the Government will seek to enhance the selection process by proposing that:

(i)

The criteria for appointment to the Pay Review Body will include the range of experience, skills, and competencies required of candidates.

(ii)

Prior to any vacancy being advertised, both the criteria and the advertisement for the vacancy will be subject to consultation with the trade unions representing workers within the scope of the Pay Review Body.”

So far as I am aware from the evidence in this case the Government, for these purposes the Claimant, has maintained the stance which was set out in the letter of 18 August 2005. Crucially, in my judgment, it has said nothing to lead to the view that exceptional circumstances for departing from a recommendation of PRB cannot include affordability.

Mr Robin Wilkinson is the Director of Human Resources for Her Majesty’s Prisons Service. He has made two witness statements on behalf of the Claimant in these proceedings. In paragraphs 40, 41 and 42 of his second Witness Statement dated 5 February 2008 he sets out the reasons why it was decided that the pay award recommended by PRB should be staged in the year 2007/08. All the reasons are related to economic policy and at least one of the reasons provided relates to affordability. Despite the complaint of Mr Hendy QC to the effect that Mr Wilkinson is quoting from documents which he has not seen the reality is that there is absolutely no basis for me to conclude other than that Mr Wilkinson has properly recorded in his Witness Statement the reasons why the pay award was staged.

It seems to me, therefore, that the evidence establishes the following. The Government of the United Kingdom is on record as stating that it will accept the recommendation of PRB except in exceptional circumstances. It has also said unequivocally that exceptional circumstances include affordability. In deciding to stage the pay award for 2007/2008 one of the reasons related to affordability.

While, no doubt, many people may have sympathy with the view of Mr Hendy QC that affordability should not regarded as an exceptional circumstance that, in my judgment, is not the point. The point is that since 2005, at least it has been known that in deciding whether or not to accept a recommendation of PRB affordability would be considered and in the event that the award was deemed not affordable that would be treated as an exceptional reason for departing from the recommendation. It follows that when the issue of affordability was taken into account in the decision to stage the 2007/2008 pay award the Claimant was acting in a manner which was consistent with the way in which it had said it would act. In those circumstances, it is very difficult to see how the Claimant has acted in such a way that it should be deprived of an equitable remedy. There is simply no inequitable conduct on its part. There is certainly no conduct on its part which destroys the bargain behind or underlying the JIRPA.

As I have said, however, Mr Hendy QC mounts a wider-ranging attack upon the conduct of the UK Government which he then submits should impact upon the Court’s willingness to grant the Claimant the injunction which it seeks. His submission is that international treaties/conventions and the European Convention on Human Rights (Article 11) recognise a right to strike. He concedes that such a right is capable of removal both under those treaties and the European Convention provided that proper compensatory measures are put in place. He submits, however, that proper compensatory measures have never been put in place by the United Kingdom Government. In those circumstances, he submits, the Court should refuse the Claimant injunctive relief. In summary, the failure to put in place proper compensatory measures amounts to inequitable conduct which should deprive the Claimant of its relief in respect of the Defendant’s admitted breach of contract.

The treaties and conventions upon which Mr Hendy QC relies as creating a right to strike are the Charter of the Fundamental Rights of the European Union, the European Social Charter, the International Covenant on Economic Social and Cultural Rights adopted by the United Nations General Assembly in December 1966 and the 1948 Convention promulgated by ILO. It is to be observed, that none of these international treaties/conventions have been incorporated into English Law. I need not delve deeply into that point since Mr Hendy QC does not assert the contrary. The European Convention on Human Rights, of course, is incorporated into English Law and Mr Hendy QC submits that Article 11 of that Convention creates a right to strike.

I am prepared to assume, without deciding the point, that the treaties and conventions relied upon (other than the European Convention on Human Rights) create the right for which Mr Hendy QC contend. As he acknowledges, however, each of those treaties/conventions also acknowledge that the right may be withheld or removed if sufficient compensatory measures are provided to the employees in question.

On any view, compensatory measures exist for the fact that either by statute or agreement the right to strike has been removed from prison officers in this country. The compensatory measures are the very fact of PRB and the fact that it can make recommendations to the Claimant in respect of pay. Under the JIRPA, it should not be forgotten, disputes about work related matters specified within it are the subject of binding arbitration.

The complaint, therefore, is not that there are no compensatory measures but that in one respect, albeit an important one, they are insufficient. The one respect, of course, relates to the composition of PRB and the fact that the Claimant can depart from its findings if it considers it appropriate so to do.

I remind myself that the alleged insufficiency of compensatory measures is said to be deliberate and as a consequence of inequitable conduct. Put another way, the Defendant submits that the failure of the Claimant to put in place a PRB which is appointed differently and whose decisions are binding amounts to conduct which should now deprive it of its entitlement to an injunction to prevent a breach of the provision of the JIRPA which prohibits the organisation by the Defendant of industrial action.

Even if I proceed on the basis that there has been a failure to provide sufficient compensatory measures I do not see how that amounts to inequitable conduct for the purposes of the doctrine of “clean hands” The compensatory measures put in place result from the 2001 Regulations and the terms of the JIRPA itself. The 2001 Regulations, of course, precede the JIRPA by some years and the terms of the JIRPA were, no doubt, a consequence of negotiations between the Claimant and the Defendant. I appreciate that the Defendant asserts that it would be incorrect to proceed upon the basis that the JIRPA was an agreement concluded voluntarily because, of course, in the absence of the JIRPA a statutory provision akin to section 127 of the Criminal Justice and Public Order Act 1994 would be in place. I accept that is true but, nonetheless, the fact that such a statutory provision would have been enacted in the absence of an agreement cannot, in law, remove the voluntary nature of the agreement. I simply do not accept that a failure (if failure it be) to provide by enactment or agreement compensatory measures which are said accord with the provisions of international treaties/conventions which are not incorporated into English Law can amount to inequitable conduct for the purposes of the doctrine of clean hands.

In any event, I should stress that I am far from satisfied that the Defendant has established that the compensatory measures are insufficient. The Claimant does not accept that is the case. I do not see how I can be expected to decide the point upon the very limited evidence available in this case. Whether or not the compensatory measures are or are not sufficient will depend upon a whole host of factual and policy matters which are scarcely touched upon in the evidence in the case. This claim has been conducted on the basis of an agreed set of facts and witness evidence from both parties which is wholly untested by cross-examination. I make no criticism of the parties for that state of affairs. It seems to me, however, that it would be most imprudent of me to make judgments about important issues such as whether or not compensatory measures are sufficient so as to accord with international treaties without a full and thorough investigation. That has simply not taken place.

It should also be noted that although I was shown a number of cases in which courts of foreign jurisdictions have taken account of the ILO Convention no case either foreign or English has been put before me which suggests that a failure to act in accordance with a convention or treaty not incorporated into the domestic law in question can amount to a reason why a remedy available under that domestic law should be withheld.

Mr Bowers QC does not accept that Article 11 of the European Convention on Human Rights creates a right to strike. Article 11 provides:-

“1.

Everyone has the right to freedom to peaceful assembly and freedom of association with others, including the right to form and join trade unions for the protection of his interest.

2.

No restriction shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interest of national security or public safety, for prevention of disorder or crime, for the protection of health or morals or for the protection of rights and freedoms of others. This Article (Art 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.”

In their Written Skeleton Mr Bowers QC and Mr Carr submit that it is trite law that the right to strike is not guaranteed by Article 11. For that proposition they quote the decision of the European Court of Human Rights in Schmidt and Dahlstrom v Sweden (Application 5589/72 1976). In that case the Court said at paragraph 36: -

“The grant of a right to strike represents without any doubt one of most important of these means, but there are others. Such a right, which is not expressly enshrined in Article 11, may be subject under national law to regulation of the kind that limits its exercise in certain circumstances”.

In Unison v United Kingdom (2002) IRLR 497 the European Court said this (paragraph 35): -

“The Court recalls that, while Article 11 paragraph 1 includes trade union freedom as a specific aspect of freedom of association, this provision does not secure any particular treatment of trade union members by the state. There is no express inclusion of a right to strike or an obligation on employers to engage in collective bargaining. At most, Article 11 may be regarded as safeguarding the freedom of trade unions to protect the occupational interest of their members. While the ability to strike represents one of the most important of the means by which trade unions can fulfil its function, there are others. Furthermore contracting states are left a choice of means as to how the freedom of trade unions ought to be safeguarded……”

That said in the following paragraphs (36 and 37) the Court went on to consider the submission made on behalf of Unison that the prohibition against striking was a disproportionate interference with its right, under Article 11, to take effective action to protect its members’ interests. At the conclusion of paragraph 36 the Court said: -

“…………the proposed strike must be regarded therefore as concerning the occupational interests of the applicant’s members in the sense covered by Article 11 of the Convention”

It went on in paragraph 37: -

“The Court further considered that the prohibition of the strike must be regarded as a restriction on the applicant’s power to protect those interests and therefore discloses a restriction on the freedom of association guaranteed under the first paragraph. It has examined, below, whether this restriction was in compliance with the requirements of Article 11 para. 2 of the Convention, namely, whether it was ‘prescribed by law’, pursued one or more legitimate aims under para. 2 was ‘necessary in a democratic society’ for the achievement of those aims.”

In the light of these passages it seems to me that Mr Bowers QC and Mr Carr are correct in their submission that Article 11 confers no express right to strike. Even if I am wrong about that, however, it is clear that under Article 11(2) considerable latitude is afforded to a contracting state to regulate the circumstances in which the right may be removed. As is pointed out in the Skeleton on behalf of the Claimant prison officers carry out essential public duties. They also protect the Convention rights of others. Many member states of the European Union have a total prohibition of strikes by prison officers in their law or constitution and, in my judgment, there would be very considerable difficulties in the way of the Defendant in persuading a Court that the measures taken by the Claimant in this case were disproportionate thereby putting the Claimant in breach of Article 11. In those circumstances, it seems to me to be impossible to conclude that the Claimant’s conduct is so inequitable so as to justify the withholding of the injunction in this case.

I have reached the clear conclusion that the Defendant has failed to show that the Claimant has acted inequitably. Even if that conclusion is erroneous, however, it does not follow that the conduct of which complaint is made, namely the failure to provide sufficient compensatory measures, amounts to such conduct in the context of this case that relief should be withheld. Although, of course, a Court has a discretion whether or not to grant an injunction to restrain breaches of negative contracts it is much more usual than not to grant such an injunction. For, as Lord Cairns L.C. said in Doherty v Allman [1878] 3APP.CA. 709 the Court is doing no more than giving the sanction of the process of the Court to that which already is the contract between the parties.

In the instant case it is not just the fact that the injunction would prevent the Defendant from breaching the JIRPA which is important. Inevitably, I have to have regard to the effect which the strike of 29 August 2007 did have, and the likely effect of any future strike. In the evidence of Mr Wilkinson the effects of the strike of 29 August 2007 are vividly set out. In summary the strike had a serious impact on the Prisons Service’s ability to provide decent and safe prison regimes in 124 prisons. Further, 30 prisons failed to produce prisoners who should have attended court. Approximately 525 prisoners who were sentenced or remanded into custody on 29 August 2007 remained locked out of prisons. There were a number of incidents of prisoner unrest. It seems to me to be inevitable that should a further strike occur the consequences would be very similar. In those circumstances, in my judgment, there is a very strong public interest in providing a remedy to the Claimant to restrain a breach of contract by the Defendant.

Given these unchallenged consequences of the breach of contract it seems to me that very significant inequitable conduct on the part of the Claimant would be necessary before there would be a proper justification for withholding the injunction. In my judgment there is no such conduct on the part of the Claimant in this case.

The parties have also debated before me whether or not the alleged inequitable conduct on the part of the Claimant has “an immediate and necessary relation to the equity sued for”. (see paragraph 21 Tensator) The injunction sought is to restrain a breach of a clause in a contract which prohibits the Defendant from organising industrial action. The Defendant asserts that industrial action would not have been taken and would not be taken in the future if the Claimant had provided the compensatory measures advocated by the Defendant. The failure to provide the compensatory measures is the conduct relied upon in seeking to persuade this Court that no injunction should be granted. Had I taken the view that the Claimant had behaved inequitably it seems to me that I would have been driven to the conclusion that there was a close connection, at the very least, between that conduct and the breach of contract.

I accept that an alternative view is that the breach of the relevant provision of the JIRPA must be looked at in the context of the agreement itself and any discussions, negotiations or representations which led to its conclusion. If, for example, the Claimant had made any suggestions or representations about the introduction of compensatory measures which it had not fulfilled that might be conduct of a kind which was sufficiently connected with the entry into the JIRPA so as to make it permissible to withhold relief if the representations or suggestions were not acted upon.

It seems to me that this latter way of looking at the need for a connection between the alleged inequitable conduct and the breach may be too narrow. My tentative view is that had the Defendant proved the allegations it makes there would have been a sufficiently close connection between the Claimant’s conduct and the Defendant’s breach. That is, however, a tentative view and one which I do not intend to develop given my findings that there has been no inequitable conduct.

It seems to me that the Claimant has established its entitlement to the injunction which it seeks. Indeed, the Defendant has advanced no reason for a contrary view save for its allegation about inequitable conduct – an allegation I have rejected.

I should add for completeness that during the course of argument I raised an issue as to whether the Defendant was correct to assert that if, in fact, the Defendant was in breach of the JIRPA before 8 May 2008 an injunction could be obtained to restrain such actual breach even if I had made a finding that the Claimant’s conduct was such that I should refuse relief in this case. After the hearing had ended I received written submission from both parties on this issue. I do not propose to rehearse those submissions or decide that point since, of course, in the light of the conclusions expressed above it is of academic interest only.

Finally, I should record that during the course of the submissions I was referred to many more cases than I have mentioned in this judgment. I mean no discourtesy in making no specific reference to such authorities. It seems to me that given the constraints of time and the need, ultimately, to focus upon whether or not the Claimant’s conduct should be a bar to relief extensive quotation from the authorities is unnecessary.