The Secretary of State for Education v National Union of Teachers (NUT)

The defendant, the National Union of Teachers (“the NUT”), has called a day of industrial action tomorrow, 15 March 2016. The NUT has called on several thousand teachers, who are NUT members working at 92 sixth form colleges in England, to take part in a one-day strike. The claimant, the Secretary of State, asks the court to make an urgent interim declaration today that the strike is unlawful.

The Secretary of State is responsible by statute (section 14 of the Education Act 2002) for the funding of education, including education provided at sixth form colleges in England. They are funded through the Education Funding Agency (“EFA”), an executive agency of the Department for Education (“the Department”). The colleges were established as statutory corporate bodies under sections 15 and 16 of the Further and Higher Education Act 1992. They are autonomous and independent institutions.

The colleges employ the teachers who teach there. The Secretary of State does not. The colleges are members of the Sixth Form Colleges Association (“the SFCA”). The SFCA represents their interests in national negotiations on pay and conditions of service with the trade unions, including the NUT, representing college employees. The negotiations take place through the National Joint Council for Staff in Sixth Form Colleges, which establishes terms and conditions for sixth form college teachers at national level.

In 2015, the Secretary of State indicated that she would not increase funding for education for 16 to 19-year-olds in 2016. The SFCA and the trade unions called for increased funding, but the Secretary of State was not willing to provide any. In July 2015, the NUT sought a 1% pay increase for teachers at sixth form colleges. Their pay had fallen behind that of school teachers and they wished to restore parity. The SFCA’s position had historically been that it was committed in principle to parity as between sixth form college teachers and school teachers, but that it could not afford to restore parity because of the absence of sufficient funding from central government.

The SFCA’s response to the demand for a 1% pay increase for sixth form college teachers was that it was unable to make any pay offer due to the impact of reductions in available funding. After further negotiations, however, in November 2015 the SFCA offered a pay increase for sixth form college teachers of 1% from 1 January 2016.

On 20 January 2016, the NUT’s General Secretary, Ms Christine Blower, met representatives of the Department and said that the NUT would be in dispute with the Secretary of State over the funding of sixth form colleges. The next day, she wrote to the Secretary of State referring to representations made in the past about the impact of reduced funding on the sixth form college sector and the “consequential detrimental effects on pay, duties and working conditions as well as the loss (and threat of loss) of jobs and paid duties of NUT members in the sector”.

In the same letter, the General Secretary informed the Secretary of State that:

Unless I receive your undertaking by 12.00 of 28 January 2016 that you will exercise your power under s.14(1) and (2)(a) and (i) Education Act 2002 (as amended) so as, by the beginning of the colleges’ 2016-2017 financial year, to increase substantially the amount of financial assistance given and to be given to sixth form colleges for the purpose of providing education to 16-19 year olds in those colleges and, in particular, for the purpose of providing remuneration and other benefits to their teachers, the members of this union in those sixth form colleges will be in dispute with you and my union will take the necessary steps leading to industrial action. I, and my team remain ready to negotiate with you and your officials at any reasonable time to resolve this dispute.

The General Secretary went on to say that the guarantee was being sought so as to provide for improvements to teachers’ terms and conditions, including pay and to avoid terminations of employment or of paid employment duties due to lack of sufficient funding from the secretary of State. She explained that the demand was addressed to the Secretary of State because:

The letter concluded:

I have to tell you that our members have had enough. Their demand is therefore not merely for a cessation of the adverse consequences on them which I describe above, they demand a reversal of these effects and a significant improvement in their working lives and remuneration. This can only be achieved by you making more, significantly more funding available to the colleges.

Nonetheless, this dispute could be settled by your Department withdrawing its proposals for 16-19 year old education funding for 2016-17 and instead increasing that funding to the levels which existed prior to the Coalition Government's commencement of funding cuts. That would allow sixth form colleges to restore teachers' pay and working conditions and allow the SFCA to conclude an agreement with us on appropriate pay increases.

The guarantee not being forthcoming, on 29 January the General Secretary wrote again to the Secretary of State, notifying her that the NUT intended to conduct a ballot from 8 February 2016 for a day’s strike action “as part of the Union’s campaign in opposition to the funding settlement in the sixth form college sector which will result in detrimental changes in terms and conditions for our members. The dispute is with you as the Secretary of State for Education.” Notice of the intended ballot was also served on the colleges affected and on the SFCA.

The Secretary of State replied the same day, expressing her disappointment and urging the union to reconsider. The ballot on industrial action proceeded from 8 February 2016. The question on the ballot paper was:

The Government Legal Department (“GLD”) was then instructed and correspondence ensued between Mr Campbell Kennedy of the GLD and the NUT and subsequently its senior solicitor, Mr Clive Romain. In the course of that correspondence, the parties debated the legal arguments but were unable to agree on whether the proposed strike would be lawful or unlawful.

On 29 February, the ballot result was available and was notified to the Secretary of State and to the colleges. On a turnout of about 44%, 86.1% of those voting, excluding one invalid vote, voted in favour of the strike action, and 13.9% against.

Also during February 2016, agreement was reached between the NUT and the SFCA that the 1% increase for sixth form college teachers would take effect from 1 September 2015.

On 29 February 2016, the day the ballot result was announced, the Joint Secretaries of the National Joint Council for Staff and Sixth Form Colleges (“the JNC”) wrote to the principals of the sixth form colleges informing them that agreement had been reached for a 1% pay increase for teaching staff on all points of the NJC pay scales and on London and fringe areas allowances, backdated to 1 September 2015.

Returning to the 29 February letter from the NUT notifying the Secretary of State of the ballot result, the General Secretary stated:

I hereby give notice that the Union will be calling upon 3866 NUT members to take a day’s strike action on Tuesday, 15 March 2016.

The letter concluded with a statement that the General Secretary had informed the employers that the union remained willing to negotiate with the Secretary of State to settle the dispute.

Mr Kennedy of the GLD then wrote again to Mr Romain on 7 March, stating that an application to the court would be made the next day. The proceedings were then brought on 8 March 2016.

The claim is brought under CPR Part 8. Pursuant to section 19 of the Senior Courts Act 1981 and CPR 40.20, the Secretary of State seeks an “urgent declaration that industrial action threatened by the Defendant to commence on 15 March 2016 is unlawful….” By an application notice, also issued on 8 March, the Secretary of State sought a speedy trial or if that were not possible an urgent interim declaration pursuant to CPR 25.1(1)(b) that the proposed strike action is unlawful, pending a trial. A speedy trial is not possible within the timescale. The matter was therefore argued before me today as an application by the Secretary of State for an urgent interim declaration.

I am grateful for the parties and their legal representatives for co-operating to make today’s hearing possible and, in particular, for providing me with their main skeleton arguments and authorities before the start of the weekend. The parties through leading counsel, Mr Sheldon QC for the Secretary of State and Mr Hendy QC for the NUT, ably supported by their respective juniors, Mr Pilgerstorfer and Mr Brittenden, supplemented their written arguments with helpful further oral arguments before me this morning and this afternoon.

The facts set out above are, as I understand it, not disputed between the parties. The following further matters are also plain and obvious and were not seriously in dispute as between the parties:

The questions for decisions are as follows: (1) whether the court should entertain and determine the Secretary of State’s application for an interim declaration; if so (2) whether the NUT has or may have a statutory defence as against the colleges in respect of any liability in tort (although no such claim by any of the colleges is before the court); and (3) whether the court should grant or refuse the Secretary of State’s application for an interim declaration.

On the first issue, whether the court should entertain and determine the Secretary of State’s application for an interim declaration, Mr Hendy referred me to the seven principles stated by Aikens LJ at paragraph 120 of his judgment in Rolls Royce plc v Unite the Union [2010] ICR 1. I have also considered Wall LJ’s detailed review of the authorities and arguments at paragraphs 13-60; Arden LJ’s judgment, especially at paragraph 151; the notes in the White Book 2016, Volume 1 beneath CPR 40.20.1-3; and the observations of Mummery LJ in Milebush Properties Limited v Tameside Metropolitan Borough Council [2011] PTSR 1654, at paragraph 88.

Mr Hendy submitted that the court should not entertain the claim for an interim declaration because the Secretary of State asserts no cause of action in tort and has no standing to claim relief in respect of torts against third party employers who have not brought any claim and whose point of view is not represented before the court.

In particular, he submitted that the sixth and seventh of Aikens LJ’s principles would be violated if the court were to entertain the claim; and that as regard the second principle, the dispute between the parties in this application is not about a legal right but about an immunity against a action which the putative claimants, the colleges, had chosen not to bring. He referred me by way of contrast to section 235A of the 1992 Act, which is an example of an express statutory provision giving a victim of unlawful union action a right of action.

I am unable to accept the NUT’s arguments on this issue and I am satisfied that I should hear and determine the claim. Aikens LJ’s seven principles are not to be read as if they were a statute and it is not a requirement that all seven must be rigidly found to apply before the court can entertain a claim for a bare declaration.

His sixth principle holds that the court must be satisfied that all sides of the argument will be fully and properly put and must ensure all those affected are either before the court or will have their arguments put before the court. Mr Hendy says that is not the case here. The colleges are not represented. They have not been served and have had no opportunity to put their arguments before the court.

I do not, with great respect, find that argument persuasive in the circumstances of this case and the force of the countervailing arguments. There is a real dispute between the present parties over whether tomorrow’s strike is lawful. It is artificial to say that it is not about a “legal right” within the second principle. The Secretary of State is invested with statutory responsibly for education in England, including that provided at sixth form colleges. That responsibility is exercised on behalf of the public. The issue is far from academic (cf Aikens LJ’s fifth principle).

It is wholly artificial to regard the effect of the strike action as engaging only private law issues as between the colleges and the NUT. If the strike proceeds, it will affect many sixth form college students, their parents, other employees of the colleges and the public. If the issue is not determined today, the strike will proceed even if it is unlawful. The public interest lies in the court determining the issue as best it can within the time constraints, applying the correct test for interim relief and taking into account that the evidence may well be incomplete.

Furthermore, the NUT itself submitted in its skeleton argument for other purposes (to which I am coming) that the colleges may be taken to be content with the strike going ahead since they have not contested the validity of the ballot or otherwise sought to challenge the legality of the strike. Whether or not that submission is well-founded, it is clear that there is no evidence of the colleges wanting to get involved in the litigation, which is not surprising. They are aware of and on notice (since 29 February) of the NUT’s call for strike action tomorrow.

Applying the seventh principle enunciated by Aikens LJ, I ask myself whether the current application is the most effective way of resolving the issues raised. There is no doubt that it is not just the most effective way of doing so, but the only way. Indeed, it seems to me that the present case is par excellence one which demonstrates the usefulness of the jurisdiction to grant a bare declaration on an interim basis under CPR 25.1(1)(b), as well as on a final basis under CPR 40.20.

I turn next to whether the NUT has or may have a statutory defence as against the colleges in respect of any liability in tort, although no such claim by any of the colleges is before the court. It is necessary to consider this issue on an interim basis on the evidence before me and without cross-examination.

I accept Mr Hendy’s point that while the court is dealing with the matter on a Part 8 basis, there could be disputes of fact if the matter were being dealt with at a trial. That said, oral evidence might well not take the issues much further, since the issue of whether there is a statutory trade dispute is, as Mr Hendy points out, ascertained objectively: see the speeches of Lords Diplock, Fraser and Scarman in NWL Ltd v Woods [1979] ICR 867 HL, at 870, 873-876, 878 and 885-888.

If this were a claim for an interim injunction rather than an interim declaration, the question of interim relief would fall to be determined by reference to American Cyanamid principles, i.e. by asking myself whether there is a serious issue to be tried that the strike is unlawful and then asking about whether damages would be an adequate remedy and where the balance of convenience and justice lies. In a case such as this where an injunction is sought, in assessing the balance of convenience and justice, section 221(2) of the 1992 Act requires the court “in exercising its discretion whether or not to grant the injunction, [to] have regard to the likelihood of that party’s succeeding at the trial of the action in establishing any matter which would afford a defence to the action”.

That subsection is the successor to section 17(2) of the Trade Union and Labour Relations Act 1974, which was in very similar terms, and as Lord Fraser pointed out in NWL v Woods at 883, it was inserted into what became the 1974 Act a few months after the House’s decision in American Cyanamid. As Lord Fraser said at 883:

In my opinion therefore the effect of section 17(2) is that the court, in exercising its discretion, should have regard to the balance of convenience including the likelihood (and the degree of likelihood) of the respondent’s succeeding in establishing the defence of trade dispute, and then come to a decision on the whole matter.

I do not think the approach of the court should be any different in the present case merely because the Secretary of State has come to court for an interim declaration and not an interim injunction, and Mr Sheldon did not argue otherwise. I can see that section 221(2) does not by its terms apply to interim relief by way of a declaration; but I do not think that should deter the court in considering the exercise of its discretion from taking account of and giving proper weight to the likelihood of a “trade dispute” defence succeeding at trial, along with all other relevant factors including the public interest.

With that approach in mind, I turn next to the issue as to whether there is or may be a statutory trade dispute between the NUT and the colleges which employ the teachers who are being asked to go on strike tomorrow. Mr Hendy, for the NUT, submits that there is clearly a “dispute between workers and their employer which relates wholly or mainly to … (a) terms and conditions of employment or the physical conditions in which any workers are required to work” (section 224(1)(a) of the 1992 Act).

He submits that to raise a dispute the union does not have to, as he put it, make a “declaration of war”. He submitted by reference to Conway v Wade [1909] AC 506, in the speeches of Lord Loreburn LC at 512, Lord Atkinson at 517-518 and Lord Shaw at 522, that even if there was no current trade dispute, the NUT was acting in contemplation or furtherance of an imminent or future dispute with the colleges, and that this was sufficient for the statutory defence. Mr Hendy also reminded me that the existence of such a dispute is not ruled out by the fact that funding for a pay increase must come from a source other than the employer (see ISS Mediclean Ltd v GMB [2015] IRLR 96, per Singh J at paragraph 22).

Mr Sheldon, for the Secretary of State, disagrees and says that the NUT is not engaged in a trade dispute with the colleges. He argues that its dispute is with the Secretary of State, not the colleges. He points out that agreement at national level has been reached between the NUT and the SFCA through the mechanism of the JNC negotiations in respect of the 2016 pay increase of 1% backdated to 1 September 2015.

The word “dispute” is not further defined in the 1992 Act. In my judgment it is an ordinary English word which simply means a disagreement about an issue. In this case, I cannot find evidence of any disagreement between the NUT and the colleges. The starting point here was the indication by the Secretary of State in 2015 that she was not prepared to increase funding for sixth form colleges. Both the NUT and the SFCA urged her to reconsider. They were in agreement about the need for more money for the sector. They did not disagree about it.

The difficult funding position led the SFCA in July 2015 to take the position that it could not offer the NUT any pay increase at all for 2016. That position was eventually modified in September 2015, with a 1% increase, but only from 1 January 2016, not backdated to 1 September 2015. Then in late February 2016, agreement was reached at national level that the increase would be backdated to 1 September 2015.

Does that history of pay negotiations amount to a dispute between the NUT and the colleges represented by the SFCA? In my judgment it does not. Mr Hendy suggests (at paragraph 25 of his skeleton) that the colleges must be taken to have accepted that there is a trade dispute between them and the NUT because they have not brought any challenge and argued to the contrary. I do not find that argument convincing. The colleges’ absence from these proceedings does not mean they perceive that they are engaged in a trade dispute with the NUT. It may mean the contrary; namely, that they do not need to take part in the proceedings because they are not part of the dispute between the NUT and the Secretary of State about the level of funding.

Mr Hendy also reminds me that under section 244(4) an “act, threat or demand” that would, if resisted, have led to a trade dispute, is treated as one notwithstanding that submission to the threat or compliance with the demand leads to no dispute arising. I do not think that advances the argument any further. The national pay negotiations through the JNC were part of the ordinary annual pay negotiations. They proceeded in parallel with, and alongside, the NUT’s dispute with the Secretary of State. Eventually they produced agreement, although the agreement to a 1% pay increase did not bind individual colleges.

There is no evidence of a specific dispute between “workers and their employer”, the words in section 244(1) of the 1992 Act, i.e. between teachers at a particular college and the college which employs them. The NUT says in its skeleton argument (at paragraph 24) that it is “in dispute with the Colleges because of their refusal/inability to take action to address the NUT’s concerns. The colleges are in turn reliant upon the [Secretary of State] to provide further funding.” That does not seem to me to be evidence of a dispute.

I have four witness statements from individual NUT teachers at four different sixth form colleges. Those statements deal with local working conditions which are said to explain why the individual voted for industrial action, but I cannot infer from them that a dispute exists between the employees of sixth form colleges generally and the colleges that employ them.

The written evidence of Mr Andrew Morris, the head of the NUT’s pay, conditions and bargaining department, does not support that proposition. He says at paragraphs 41 and 42 of his statement that the guarantee of increased funding was sought from the Secretary of State because the colleges are, as set out in the General Secretary’s letter of 21 January 2016, “simply not in a position to provide the substantive guarantee sought unless and until you exercise your statutory power … to increase their funding.”

In the NUT’s skeleton at paragraph 54, it is said that the NUT has made “demands” on the colleges, but these demands are not specified. In the same paragraph it is said that the “NUT recognises that the employers are unable to accede to their demands without more funding from the [Secretary of State].” On the evidence I have, however, the NUT has not made the demands on the colleges precisely because it recognises that its dispute is with the Secretary and the colleges are unable to meet their demand for increased funding. Only the Secretary of State can do that.

Nor do I accept Mr Hendy’s alternative suggestion that the NUT is acting in contemplation or furtherance of a future dispute with the colleges. The evidence does not support that proposition. If the Secretary of State accedes to the demand for more funding for the colleges, there will no doubt be pay negotiations between the SFCA and the NUT. These may be harmonious, acrimonious or somewhere between the two.

For those reasons, I find the NUT’s argument - that there is a trade dispute within section 244(1)(a) of the 1992 Act between its teacher members and the colleges at which they work – is weak and unlikely to succeed at trial. I would be prepared to grant the interim declaration sought, subject to the further question whether there is a statutory trade dispute involving the Secretary of State as contended by the NUT.

I turn next then to consider that second species of trade dispute; namely a dispute within section 244(2) between “a Minister of the Crown and any workers”, which dispute “relates to matters which … (b) cannot be settled without him exercising a power conferred upon him by or under an enactment”. The NUT submits that the dispute between it (and its members, the sixth form college teachers) and the Secretary of State fits that description admirably.

Specifically, the NUT makes the following points. It submits that the dispute clearly “relates to” the NUT’s demand for increased funding for the sixth form colleges. Furthermore, it submits that the dispute relates to “matters which … cannot be settled without the [Secretary of State] exercising a power conferred on [her] by or under an enactment”. The enactment relied on by the NUT is section 14 of the 2002 Act.

Section 14(1) empowers the Secretary of State to “give, or make arrangements for the giving of, financial assistance to any person for or in connection with any of the purposes mentioned in subsection (2)”. Those purposes include “the promotion of the recruitment or retention of teachers …” (section 14(2)(h)) and “the remuneration of, or provision of other benefits to, teachers …” (section 14(2)(i)).

The NUT argues that the present dispute relates to teachers’ terms and working conditions, and to threats to jobs and paid duties, and that it manifestly cannot be resolved without the Secretary of State exercising her section 14 powers to provide the colleges with financial assistance over and above that already available. That is the essence of what the NUT was demanding of the Secretary State in the General Secretary’s letter of 21 January.

Mr Hendy reminds me that the definition of a trade dispute’s permissible subject matter is not confined to pay; it also encompasses, within section 244(1)(b) and (c), threats to jobs and paid duties, allocation of work and duties. These come into play where there is a risk of colleges closing or merging which on the evidence is, he submitted, a very real possibility and is part of the expressed rationale for the NUT’s demand of the Secretary of State.

He also argues that section 14, read together with section 16 empowering the setting of terms for financial assistance, is wide enough to enable the Secretary of State to provide funding for the colleges for the specific purpose of that funding being used to increase teachers’ pay; and that the Secretary of State could insist on “arrangements” under section 14(1) which produced that outcome.

The Secretary of State, through Mr Sheldon, submits that section 244(2)(c) should be read as importing a requirement that the dispute will be settled if the Secretary of State exercises a statutory power, not just that it cannot be settled without her doing so. He also points out that, as the NUT accepts, the dispute with the Secretary of State, to qualify as a valid trade dispute must relate “wholly or mainly” to one or more of the matters listed in section 244(1)(a) to (g) and that in addition, the dispute must relate to matters that cannot be resolved without the Secretary of State exercising a statutory power.

The dispute therefore cannot, says Mr Sheldon, be a trade dispute if its predominant purpose is not to improve teachers’ pay and working conditions and protect their jobs, but to achieve the political objective of securing higher funding for sixth form colleges. On the evidence, Mr Sheldon submits, the latter not the former is the predominant purpose of the proposed strike action.

Exhibited to the second witness statement of Mr Warwick Sharp, a senior civil servant within the Department, are over 100 pages of campaign materials and statements made on social media outlets which, Mr Sheldon contends, show that the NUT’s action is in truth a broad campaign predominantly aimed at securing increased funding for sixth form colleges generally and not specifically aimed at enhancing teachers’ working conditions and job protection.

He also submits that the Secretary of State cannot use her powers under section 14 of the 2002 Act to dictate to the colleges how to spend the money allocated to them under section 14. Mr Sharp states in his first witness statement (at paragraph 4) that the Secretary of State “does not determine and is not empowered to prescribe exactly how the funding received is allocated or spent by any college.” Mr Morris takes issue with this self-denying ordnance in his witness statement at paragraph 14, where he says: “[s]he has express legislative power to prescribe the purposes for which funds are to be allocated…. This could include making conditions as to how certain funds are to be used or allocated.”

Both parties referred me to authority on the issue of predominant purpose; see in particular Mercury Communications Ltd v Scott-Garner [1984] Ch 37, CA, per Lord Donaldson MR at 81E-F, May LJ at 92D and Dillon LJ at 97-98; and cases that fell on the other side of the line: Westminster City Council v Unison [2001] ICR 1046, CA, per Pill LJ at paragraphs 10 and 12; University College London Hospitals NHS Trust v Unison [1999] ICR 204, per Lord Woolf MR at 213; and Wandsworth LBC v NASUWT [1994] ICR 81 (the only authority on a trade dispute under section 244(2) to which I was referred).

I turn to my reasoning in conclusion on this issue. The first point is that a dispute falling within section 224(2) must still be one that relates wholly or mainly to one or more of the matters listed in 224(1)(a)-(g). It is not sufficient that the dispute merely “relates” to one or more of those matters. Section 224(2) is a deeming provision which does no more than expand the class of disputes that are deemed to be between “workers and their employer”. Section 244(4) does not alter the permissible subject matter of such a dispute which remains that set out in subsection (1)(a)-(g). This is common ground.

Secondly, however, the fact that the colleges are responsible for setting the pay and conditions of the teachers they employ, is not a complete answer to the proposition that the demand for increased funding for the colleges has generated a trade dispute. I do not see why the Secretary of State could not in the exercise of her powers under sections 14 and 16 of the 2002 Act provide funding for sixth form colleges by means of an arrangement whereby the funding is earmarked for a pay increase for teaching staff at the colleges or for other specific purposes that protect jobs. Even if that were not so, a union might be satisfied with increased funding provided to the colleges under section 14 without preconditions, in the hope of then persuading the colleges to use the money for pay increases and protection of jobs.

I have no difficulty with the argument that loss of public funding is likely to lead to loss of pay and jobs, and more funding can be used to fund pay increases and protect jobs. That is essentially the position taken by the General Secretary in her letter of 21^st January 2016. The same approach is taken in the phrasing of the question in the ballot paper.

It does not follow that the predominant purpose of the NUT and its members is outside the scope of a trade dispute merely because the demand is for increased funding for sixth colleges. But the converse does not follow either. A demand may be made for increased funding for sixth form colleges to protect jobs and pay, while the true predominant purpose may be the broader political one of protecting the education budget for sixth form colleges.

I bear in mind what Roskill LJ, as he then was, said in Sherard v AUEW [1973] ICR 421 CA, 435G, that the notion of a “political strike” does not lend itself to precise or accurate definition. As Mr Hendy reminds me, a dispute with a minister is by its nature likely to engage issues of policy, but that those issues may none the less bear strongly on the industrial well-being of the workforce.

The Secretary of State’s case amounts to an assertion that the expressed purpose of the demand made by the General Secretary in her letter of 21 January 2016, is not the true predominant purpose. Indeed, Mr Sheldon’s skeleton clearly suggests (at paragraph 35) that the NUT has sought to “dress up the dispute as being about terms and conditions of employment” while “the reality is quite different”.

In support of his proposition that the dispute is “mainly about saving the sixth form college sector”, Mr Sheldon relies on various NUT publications and social media statements. I have carefully read them, and they do include strong political criticisms of perceived neglect of sixth form colleges generally, and campaigning slogans such as “Save Sixth Form Colleges”, a phrase used at the start of a detailed practical guide to taking strike action dated February 2016, which includes the following:

Why are we taking action? The NUT is taking action in order to protect your pay and other terms and working conditions through the following:

•

Restoration of 16-19 funding to the levels which existed before the Coalition Government started its cuts programme

•

Exemption from VAT for sixth form colleges - without having to apply for academy status

•

Removal of the threat of closure or merger - and recognition of sixth form colleges’ achievements

The NUT has declared an industrial dispute with the Secretary of State for Education …. about the pressures on our members in sixth form colleges. This is an element of our wider campaign to defend sixth form colleges and student opportunities as well as protect teachers.

I have considered very carefully the materials relied upon by the parties and, in the case of the Secretary of State, emphasised in her skeleton at paragraphs 36 (and the sub-paragraphs under it). Those materials were attached to Mr Sharp’s witness statement. There are some additional materials produced by the NUT which I have also considered.

I attach relatively little weight to social media comments from individuals. These are not statements made by or on behalf of the NUT. Much more telling are the NUT’s own publications, including the video transcript that I was shown and other materials emanating directly from the National Leadership.

In the end I have come to the conclusion that the “more likely than not” result at any trial of the issue would be that the NUT’s strategy is to protect its members’ jobs and conditions by shoring up the sixth form college sector, rather than to shore up the sixth form college sector as an end in itself. That is in my judgment the means to the end, not the end itself.

The PowerPoint presentation “There is an Alternative” is particularly eloquent in this regard. It speaks not just of teachers’ pay but of threats of redundancies, increased group sizes, reductions in courses offered and the threat of mergers and closures. These are classically the territory of a section 244(1)(b) and (c) trade dispute, although there is also plenty of evidence of a concern not to suffer a further erosion in sixth form college teachers’ pay, which is the territory of a section 244(1)(a) trade dispute.

It seems to me that some assistance is gained, different though the facts are here, from what Neill LJ said in Wandsworth London Borough Council v NASUWT at 96F-H, a case in which there was found to be a likely trade dispute arising from the workload involved in coping with the introduction of the national curriculum. He said this:

We have come to a clear conclusion in this case. We have not set out all the relevant documents but we have had an opportunity to read them and study them. It seems to us to be quite clear that looking at the history since 1990 there has been increasing concern expressed by the union on behalf of its members with regard to working time. This concern came to a head as the date for the key stage 3 testing approached. It is quite clear that members of the union have criticisms to make about the national curriculum on educational grounds. This was recognised by Mr. de Gruchy in paragraph 3 of his affidavit, but he added: “Of most concern to the union in relation to its members is the excessive and unnecessary workload that the national curriculum imposes on teachers.” That statement, which remains uncontradicted, is to be read in the context as referring primarily to the extra time which teachers have to work. Furthermore, we attach considerable importance to the wording of the question posed in the ballot paper. It is to be remembered that the ballot was authorised by the union executive at the meeting on 5 February 1993.

While I entirely accept Mr Sheldon’s point that the predominant purpose issue is not concluded by the ipse dixit of the NUT, that passage seems to me to show the willingness of the court to give proper weight to statements made by the leaders of the union to its members in the course of their leadership duties, and statements made by the union to the other disputant in the dispute about what the reason is for the dispute.

I do not accept Mr Sheldon’s argument that the colleges can find alternative sources of funding and the exercise by the Secretary of State is therefore not required to settle the dispute. There is no evidence of any alternative funding being available even though raising funds from private sector sources is, as Mr Sheldon has demonstrated, lawful (see sections 33E and 33F of the Further and Higher Education Act 1992).

It seems to me plain that section 244(2)(c) requires that exercise by the Secretary of State of a statutory power is a prerequisite of settlement of the dispute. It does not require anything further. The evidence is very strong that such is the position here.

The NUT also took a separate point: that if the interim declaration sought were granted, there would be a resulting breach of its members’ right under article 11 of the European Convention which deals with freedom of association, as discussed in the decision of the Court of Human Rights in RMT v United Kingdom [2015] 60 EHRR 10.

If the case were to go to trial, there would be a justification issue under article 11(2): whether the provisions limiting tort immunity to cases where a person acts in contemplation of furtherance in a trade dispute (including cases falling outside that definition because the predominant purpose of industrial action is the furtherance of a political cause rather than a job related one) are justified.

I think there is a strong possibility that the existing law would be held to be justified within article 11(2), and I do not regard this argument of the NUT as having sufficient strength to influence the court significantly against the grant of an interim declaration.

I come, finally, to consider the balance of convenience, using that phrase in the sense which includes within it having regard to the likelihood of a trade dispute defence succeeding at trial as required under section 221(2) of the 1992 Act and as discussed (in relation to the predecessor provision) by their Lordships in NWL v Woods. I take into account my evaluation of the evidence and the strengths and weaknesses of the arguments on both sides as discussed earlier in this judgment.

In particular, I bear in mind that in my view the Secretary of State’s arguments about the predominant purpose of the strike would probably be found at trial to attribute too much altruism to the NUT’s members. I hope I will be forgiven my use of language if I say that it seems to me the NUT’s members know which side their bread is buttered. On my evaluation of the evidence available today, their main concern is their perception that if the sixth form colleges die, their jobs die with them.

If the strike proceeds, it will cause severe disruption to the education of students, to their parents, to the governing bodies of the sixth form colleges and to the work of the non-teaching staff employed at the colleges. This factor counterbalances the point that the colleges have not sought to join in the government’s present legal challenge.

The colleges have not challenged the legality of the strike and indeed supported the call for more funding last year. They are in law the wronged parties rather than the government in theory, but the Secretary of State is the guardian of the public interest in education matters.

I attach negligible weight to the point that the Secretary of State has suffered no financial loss and that the colleges may save wages and salary payments. This case is not about money. Damages would plainly not be an adequate remedy for either party. The Secretary of State would not be entitled to any damages, lacking any cause of action against the NUT.

I take into account that a union will often need to “strike while the iron is hot” if industrial action is to be effective. In the dock strike case in 1989, a strike was neutralised by an injunction wrongly granted, and it was too late for the strike to be effective by the time the House of Lords put the matter right: see Associated British Ports v Transport and General Workers’ Union [1989] 1 WLR 939.

Here, an interim declaration wrongly granted now would probably in practice defeat the exercise of such rights as the NUT has to call a strike without infringing the law.

In the end, weighing all those matters in the balance as best I can, I have come to the conclusion that the balance comes down against the grant of the interim declaration sought, and I therefore dismiss the Secretary of State’s application.