R (on the application of Boots Management Services Ltd) v The Central Arbitration Committee The Pharmacists' Defence Association Union (Interested Party) The Secretary of State for Business, Innovation and Skills (Intervenor)
| Jurisdiction | England & Wales |
| Judge | Sir Brian Keith |
| Judgment Date | 12 September 2014 |
| Neutral Citation | [2014] EWHC 2930 (Admin) |
| Date | 12 September 2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/2178/2013 |
[2014] EWHC 2930 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir Brian Keith
(sitting as a Judge of the High Court)
Case No: CO/2178/2013
Mr David Reade QC (instructed by Messrs Baker and McKenzie LLP) for the Claimant
Mr John Hendy QC and Mr Simon Cheetham (instructed by Miss Orla Shiels) for the Interested Party
Mr Daniel Stilitz QC and Mr Joseph Barrett (instructed by the Treasury Solicitor) for the Intervenor
The Defendant did not appear and was not represented
Hearing date: 23 July 2014
Approved Judgment
Introduction
On 29 January 2013, the Central Arbitration Committee ("the CAC") decided that the application of the Pharmacists' Defence Association Union ("the PDAU") to be recognised by Boots Management Services Ltd ("Boots") for the purposes of collective bargaining on behalf of the pharmacists employed by Boots was admissible. Boots sought judicial review of that decision, and in the Court's judgment of 22 January 2014 ( [2014] EWHC 65 (Admin)), the Court made various findings on its way to concluding that it was not yet appropriate for the Court to make any final order on the claim. Specifically, the Court wanted to give the PDAU the chance to consider whether to apply for a declaration of incompatibility between various provisions in Schedule A1 ("the Schedule") to the Trade Union and Labour Relations (Consolidation) Act 1992 ("the 1992 Act") and Art. 11 of the European Convention on Human Rights ("the Convention").
Following that judgment, the PDAU applied for declarations that para. 3(6) of the Schedule, alternatively para. 3(5) of the Schedule, alternatively the whole of para. 3 of the Schedule, were incompatible with Art. 11. If it was necessary to amend its grounds of resistance to Boots' claim in order to be able to apply for any of these declarations, it sought permission to do so. That application was served on the Treasury Solicitor (as well as on Boots' solicitors), and the Secretary of State for Business, Innovation and Skills subsequently exercised his right under section 5 of the Human Rights Act 1998 ("the 1998 Act") to intervene in the proceedings. He opposes the application for these declarations on the basis that other provisions of the Schedule can and should be read in such a way as to prevent the supposed incompatibility from arising. The hearing to determine the PDAU's application for the declarations of incompatibility has now taken place, and this is the Court's judgment following that hearing. This judgment will necessarily have to be read in conjunction with the Court's previous one, and I proceed on the basis that anyone reading this judgment will have access to the Court's earlier one.
Two preliminary matters
The PDAU's standing to make the application . In a note to the parties, I questioned whether a declaration of incompatibility could be made on the application of an interested party to a claim for judicial review as opposed to the claimant or the defendant. A declaration of incompatibility is a remedy available under section 4(2) of the 1998 Act, and my concern was that, on a literal reading of para. 15 of the Practice Direction supplementing Part 16 of the Civil Procedure Rules, only a "party" to the proceedings could seek a remedy under the 1998 Act. But it seems to me that once a person or body has been regarded as "directly affected by the claim", so as to be treated by rule 54.1(2)(f) of the Civil Procedure Rules as an interested party to the claim, and is for that reason to be regarded as sufficiently interested in the claim to be served with the claim under rule 54.14, that person or body is to all intents and purposes a party to the proceedings. Apart from anything else, it would defeat the overriding objective of the Civil Procedure Rules if an interested party who was directly affected by a provision arguably incompatible with their rights under the Convention was prevented on technical grounds from seeking a declaration of incompatibility in respect of that provision. The PDAU therefore has the standing to apply for the declarations of incompatibility which it seeks.
The application for permission to amend . The PDAU's original grounds of resistance did not include a claim for declarations of incompatibility. That is not altogether surprising. Its case was that the CAC had been right to read para. 35(1) of the Schedule in the way that it had, thereby making it compatible with Art. 11. It was only when the Court (a) decided that it had not been open to the CAC to read para. 35(1) in the way it had, and (b) reminded the parties that it could make a declaration of incompatibility, that the PDAU decided to advance a secondary case which relied on the power which the Court has to make a declaration of incompatibility, but which the CAC does not have. With the advantage of hindsight, it might be said that the PDAU should have protected itself by seeking in its grounds of resistance the declarations of incompatibility it now seeks should the Court conclude that the CAC could not have read para. 35(1) in the way that it had. But subject to one important reservation, there has been no discernible prejudice to any of the parties. Moreover, there is a strong public interest in having the uncertainty which the Court's judgment raised over the compatibility of some of the provisions in the Schedule with Art. 11 properly resolved. In my opinion, it is desirable for the supposed incompatibility of para. 3 of the Schedule with Art. 11 to be addressed on the basis of a properly pleaded amendment, and subject to the caveat to which I am about to come, I give the PDAU permission to amend its grounds of resistance to include a claim in the terms of para. 3 of the document attached to its application notice dated 10 February 2014.
The one reservation relates to the stance taken by the Secretary of State when the PDAU's application notice for the declarations of incompatibility it now seeks was filed. He argued that the proceedings should have been adjourned as soon as it became apparent that the compatibility of any of the provisions in the Schedule with Art. 11 might be called into question, so as to give the Secretary of State the opportunity to intervene in the proceedings at that stage if he chose to. At the very least, the parties should have informed the Secretary of State that the compatibility of some of the provisions in the Schedule with Art. 11 was being questioned. Since neither of those steps were taken, the Secretary of State contended that the Court's earlier judgment should be treated as provisional to allow the Court to consider the Secretary of State's case that no question of any such incompatibility arises.
It is important to identify what the Secretary of State's concern really was. It related to the construction which the Court placed on the meaning of the phrase "collective bargaining" in para. 134(1) of the Schedule. He wishes to argue for an alternative construction, which, if correct, would, he says, prevent the supposed incompatibility from arising. The Secretary of State was anxious that if the Court was not willing to re-visit the proper construction of the phrase "collective bargaining" in para. 134(1), he would have been denied, by the failure of the parties to notify him of the supposed incompatibility, of the opportunity to make submissions on the issue. Accordingly, if the Court was not prepared to re-visit the issue, he contended that the application for permission to amend should be refused.
Boots, of course, was quite content for the issue to be re-visited, because its case always was that the phrase "collective bargaining" in para. 134(1) of the Schedule could not be construed in the way that the PDAU contended for. And the PDAU was content for the issue to be re-visited as well. As Mr Hendy said, it is "obviously right" that the Secretary of State should be able to advance the arguments he wants to, even if that involves addressing again some of the issues which the Court had previously decided. That stance reflects the proposition that if the Secretary of State's right to intervene in a case where the compatibility of legislation with the Convention is being questioned is to be effective, he should have the opportunity to address, not merely the question whether a declaration of incompatibility should be made, but whether the particular provision which is said to give rise to that incompatibility can and should be construed in such a way which prevents the supposed incompatibility from arising. In the circumstances, there is nothing to prevent the Court from re-visiting the issue of the proper construction of para. 134(1) of the Schedule, nor any reason why the PDAU should not have permission to amend its grounds of resistance.
Surmounting the barrier in para. 35
The Secretary of State does not challenge the Court's previous decision that para. 35 of the Schedule cannot be interpreted in a manner which renders it compatible with Art. 11. The case...
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