Ministry of Justice v Prison Officers' Association

There is at present considerable discontent amongst prison officers and the Prison Officers' Association has been campaigning for better pay and improved conditions for its members. In that context, at a meeting on 22 February 2017, the National Executive Committee of the Association accepted the following proposal:

A briefing paper issued by the Prison Officers' Association goes on to say that, as a result of that decision which I have just quoted, all branches will conduct a branch meeting at 7.30 am on 1 March 2017 outside their establishment. The local committee will then read out the content of the briefing paper and persuade their members to follow conference and union policy as follows:

In response to that briefing paper, the Secretary of State for Justice has applied today to the court seeking an urgent injunction to prevent the briefing being given in accordance with the passage that I have read out at branch meetings throughout the country at 7.30 tomorrow morning. It is said that, in publishing this briefing paper and proposing to take the further actions stated in it, the Prison Officers' Association is in breach of section 127 of the Criminal Justice and Public Order Act 1994 and also of an earlier order of this court made by Kerr J on 15 November 2016. That order was made on a similar application previously made by the Secretary of State and required the Prison Officers' Association to withdraw two circulars which had at that time been issued proposing strike action in the context of a dispute about health and safety matters. Paragraph 1 of that order is in general terms and provides for the Association until trial or further order to be restrained from inducing, authorising or supporting any formal industrial action by any prison officer in the form of withholding services as a prison officer or various other enumerated matters.

There has not been any subsequent variation of that order, nor, so far as I understand, any further step taken in proceedings which were begun at that time. To deal first with the relevance of that order, it seems that the particular circulars which triggered the application to the court for an injunction on that occasion and the briefing paper which has given rise to this application are part of what might be called a continuum of actions being taken by the Prison Officers' Association. Nevertheless, it seems to me that on a fair reading the order made on 15 November 2016 was directed at particular action which was being contemplated on that occasion and I do not think it would be right to read paragraph 1 of that order, although ostensibly couched in wide terms, as imposing some kind of continuing obligation which will apply to any further proposed action and have the potential to make any such action a contempt of court rather than simply a breach of statutory duty. Although the two relevant actions in this case are much more closely connected than the two actions which were the subject of injunctive proceedings in the case of Burgess & Ors v Stevedoring Services Ltd (Bermuda) [2002] 1 WLR 2838, it nevertheless seems to me that the observations of Lord Hoffman at paragraphs 36 and 37 of that case are pertinent and that it would not be right to treat the effect of the injunction given last November as applying to this present dispute.

I therefore turn to consider the position under the Act which is the crux of the matter. By virtue of section 127 prison officers are in a special position unlike that of employees generally, in that Parliament has, by enacting that provision, made unlawful actions taken in relation to prison officers which might not have been unlawful if taken in the ordinary employment context. It is apparent that the underlying purpose of the provision is to prevent disruption in prisons and risks to safety to which such disruption can give rise. By subsection (1), a person contravenes the provision if he induces a prison officer to take (or continue to take) any industrial action or to commit a breach of discipline. “Industrial action” is defined in subsection (1A) as meaning either (a) “the withholding of services as a prison officer”; or (b) “any action that would be likely to put at risk the safety of any person, whether a prisoner, a person working at or visiting a prison, a person working with prisoners or a member of the public”. A “breach of discipline” is defined in subsection (5) as “a failure by a prison officer to perform any duty imposed on him by the prison rules or any code of discipline having effect under those rules”.

Mr Stilitz QC, who appears for the Secretary of State, submits, relying on a witness statement made by Mr Martin Mecrall on behalf of the Secretary of State, that the action taken by the Prison Officers' Association contravenes section 127 on three bases: first, that it is an inducement to take industrial action in the form of withholding services as a prison officer; second, that it is an inducement to take industrial action in the form of action that would be likely to put at risk the safety of any person; and third, that it constitutes inducement to commit a breach of discipline. In that latter regard, reliance is placed on a disciplinary code contained in an instruction issued by NOMS pursuant to which it represents misconduct to fail to obey a lawful and reasonable order or written instruction.

Mr Hendy QC, who has appeared at very short notice for the Prison Officers' Association today, argues that the briefing paper and proposed action do not constitute inducement to industrial action because they relate solely to voluntary tasks which do not fall within the scope of duties which prison officers can be required pursuant to their contracts to undertake. He likewise submits that the phrase “the withholding of services as a prison officer” in section 127(1A)(a) must be construed to mean withholding of services which a prison officer may be contractually obliged to provide. He relies on a witness statement provided by Mr Glyn Travis, the Assistant General Secretary of the Prison Officers' Association, which takes each of the roles referred to in the briefing paper in turn and maintains that the performance of those roles is voluntary in the sense that no prison officer is contractually obliged to undertake work in pursuance of any of those roles. On that basis, Mr Hendy further submits that a refusal to undertake those activities will not involve a breach of a lawful and reasonable order and therefore would not constitute a breach of discipline. He submits that nothing in the briefing paper amounts to an incitement or inducement to prison officers to refuse to obey lawful instructions.

A good deal of the argument this afternoon has focused on the question of what is the extent of the duties which prison officers may contractually be required to undertake. I have also been referred to cases which are concerned with situations in which there has been a "work to rule" or refusal to work overtime in which the argument has turned on whether or not such conduct would constitute a breach of contract. I do not consider, however, that it is necessary for me to engage with those issues today because, as I construe section 127(1A) of the 1994 Act, the definition of “industrial action” is not confined to services which prison officers may be contractually obliged to undertake. Considered by reference to the purpose of the provision which I identified earlier, I see no reason to put such a gloss on the language used. It seems to me that the natural and ordinary meaning of the words is that it will constitute industrial action if a person induces a prison officer to withhold any services which that person would otherwise have provided as a prison officer. I see no reason or justification for reading into the definition the qualification that the services not only must be services that would be provided as a prison officer, but services which the individual could be contractually required or instructed to undertake.

In any event, even if that is wrong, on the material before the court today it seems to me that the evidence indicates that the proposed action will constitute industrial action also in the second statutory sense, that is to say “action that would be likely to put at risk the safety of any person, whether a prisoner or a person working at a prison” etc.

It is necessary in that regard to consider the totality of the action which is to be taken and not to focus narrowly on each individual aspect of it. What is being proposed is on a national basis that all members of the Prison Officers' Association should withdraw from a whole series of voluntary roles. Those include such matters as the provision of first aid and undertaking assessments to determine whether prisoners are at risk of suicide and self-harm. It seems to me self-evident that a nationwide policy of withdrawing from providing such assessments, to take that as an example, gives rise to a risk to the safety of prisoners. When one looks at the proposed actions as a whole, that risk is further magnified.

Accordingly, on the evidence that has been placed before the court today, it appears to me that there is a threatened breach of a section 127 on each of those grounds. It is plainly just and convenient to grant an injunction in those circumstances and, subject to discussion of the terms, I propose to do so. .