Secretary of State for Justice v Prison Officers Association
| Jurisdiction | England & Wales |
| Judge | Mr Justice Cavanagh,Lady Justice Simler |
| Judgment Date | 19 December 2019 |
| Neutral Citation | [2019] EWHC 3553 (QB) |
| Date | 19 December 2019 |
| Docket Number | Case No: QB/2019/002608 |
| Court | Queen's Bench Division |
[2019] EWHC 3553 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Simler
and
Mr Justice Cavanagh
Case No: QB/2019/002608
Sir James Eadie QC, Daniel Stilitz QC, and Katherine Hardcastle (instructed by the Government Legal Department) for the Applicant
Hugh Southey QC and Stuart Brittenden (instructed by Thompsons) for the Respondent
Hearing date: 19 November 2019
Approved Judgment
Lady Justice Simler and
This is the judgment of the court.
Introduction
The Secretary of State for Justice seeks an order of appropriate penalty against the Prison Officers' Association (“the POA”) under CPR 81, for alleged civil contempt by reason of disobedience of a court order. No order of committal is sought against any named individual. The application notice for contempt was issued on 19 July 2019 (though it was not sealed until 7 October 2019) and was served directly on the POA's solicitors, with supporting material, on 3 September 2019. The order alleged to have been breached on two occasions is a permanent injunction ordered by Jay J on 19 July 2017 (“the Injunction”), after a contested trial, prohibiting the POA from inducing, authorising or supporting any form of industrial action by a prison officer. We set out the relevant terms of the Injunction later in this judgment.
The Secretary of State contends, and the POA does not dispute, that, on 14 September 2018, the POA induced national strike action by prison officers; and on 21 February 2019, the POA supported industrial action by prison officers at HMP Liverpool. It is also the case that the POA accepts that the two incidents referred to amount to breaches of express terms on the face of the Injunction. Nor does the POA contend that it was unaware of the terms of the Injunction imposed on it.
As Mr Stephen Gillan, the General Secretary of the POA explains in his evidence and we accept, the POA plays an important and significant role in facilitating and maintaining good industrial relations. It represents just over 30,000 dedicated, hardworking prison officer members across 122 prisons in England and Wales. It is well documented that, while the prison population has been growing and continues to grow, the number of prison officers is falling. Mr Gillan refers to the annual report for 2019 of HM Chief Inspectorate of Prisons for England and Wales (referred to as “HMCIP”). The opening paragraph of the report's introduction reads:
“… far too many of our jails have been plagued by drugs, violence, appalling living conditions and a lack of access to meaningful rehabilitative activity… Overall, levels of self-harm were disturbingly high and self-inflicted deaths tragically increased… …
However we were also struck, as in previous years, by the extraordinary dedication of those who work in our prisons. Their work is difficult, often dangerous, largely unseen by the public and, as a result, little understood. Many worked through a period in which reduced resources, both in terms of staff and investment, made it extremely difficult to run some of our jails. Many are new to their jobs and deserve as much support as possible as they gain experience and grow into their roles in an environment where, in too many establishments, drug-fuelled violence remains a daily reality.”
That backdrop provides important context for the contempt application, the POA's response to it, and its cross-application by notice dated 10 October 2019, to set aside or vary the Injunction.
In summary, the POA submits that the court should dismiss the contempt application and/or for the same reasons, should set aside or vary the Injunction for the future, on the basis either that the Injunction should not have been granted at all, or that the terms of the Injunction are too wide. The POA submits that a case decided by the European Court of Human Rights since Jay J's judgment, Ognevenko v Russia (Application No 44873/09) (2019) 69 EHRR 9, decided on 20 November 2018, makes clear that the Injunction gave rise to a violation of the POA's rights under Articles 11, 3 and/or 14 of the European Convention on Human Rights (“the Convention”). This means, contends the POA, it would be unlawful and in breach of Article 11 of the Convention for this court to take any steps to enforce the Injunction, and the Secretary of State too is in breach of his Convention obligations by applying to enforce it by this application.
The POA submits that a complete ban on industrial action is a disproportionate interference with Article 11 rights of freedom of association in the absence of compensating measures to offset the ban. Further, the ban on inducement and support of industrial action contravenes Article 3 because it will give rise to a significant risk of degrading treatment in violation of Article 3 as POA members may not be aware of their legal rights and obligations unless advised by the POA. They may, therefore, be unaware that their continued attendance at work would breach their rights as protected by Article 3, or that they may be caused to detain prisoners in conditions that violate Article 3.
Yet further, the POA submits that the ban on the inducement and support of industrial action violates Article 14 (the prohibition of discrimination), to the extent that it limits the application of s.44(1)(d) of the Employment Rights Act 1996 (“the ERA”). Section 44(1)(d) provides that an employee has the right not to be subjected to a detriment for leaving the workplace because s/he reasonably believed themselves to be in serious and imminent danger. The POA submits that all other workers have the benefit of the protection of this provision, but that the effect of the Injunction was to erode the protection for prison officers afforded by it.
It is no answer to this, submits the POA, for the Secretary of State to say that the Injunction is consistent with the statutory prohibition on the inducement of strike action laid down by s.127 Criminal Justice and Public Order Act 1994 (“the 1994 Act”), because s.127 must be “read down” in order to render it consistent with the Convention. If it is read down in this manner, the actions of the POA in September 2018 and February 2019 were not in breach of s.127 of the 1994 Act.
The POA makes a further submission not based on the Convention. It submits the Injunction goes too far under domestic law because it prohibits the POA from “supporting” any form of industrial action by any prison officer. The POA contends that this means that the POA is prevented from providing support, advice or guidance to any officer who is contemplating withholding his services, and that this is not something that is rendered unlawful by s.127 of the 1994 Act.
In the alternative, even if the POA is in contempt, it submits that the court should not impose any penalty. Reliance is placed on the same arguments by way of mitigation and in support of the contention that the court should not impose any sanction on the POA for the breaches of the Injunction. The POA submits no harm was caused on either occasion, and even if the court concludes a penalty should be imposed, the court should take account of the above in mitigation when deciding upon sanction.
As will be apparent from this summary of the issues, the applications raise wide-ranging issues of law. However, even if the POA is right in its submission that the Injunction breaches Convention rights, or was wrongly made for other reasons, the question arises as to what consequences should follow. The POA did not advance any argument based on the Convention in the hearing before Jay J. There was no successful appeal on this or any other basis. The POA did not make an application to set aside or vary the Injunction until after contempt proceedings were commenced. It admits that it has twice breached the terms of the Injunction. In those circumstances, is it a defence to a contempt application for a respondent to argue that recent developments in case-law show that the injunction should not have been granted in the first place, given the injunction was still in force when the breaches took place? Again, in what circumstances, if any, should an injunction be varied or set aside on the basis of arguments which were advanced, or could have been but were not advanced, to the court before the injunction was originally granted? We will return to these questions later in the judgment.
The Secretary of State is represented by Sir James Eadie QC, leading Mr Daniel Stilitz QC and Ms Katherine Hardcastle. The POA is represented by Mr Hugh Southey QC and Mr Stuart Brittenden. Mr Stilitz QC and Mr Brittenden appeared in the injunction hearing before Jay J. We are grateful to all counsel for their helpful written and oral submissions.
The structure of this judgment
In the remainder of this judgment, we will deal with the issues in the following order:
1) The terms of the Injunction (granted by Jay J on 19 July 2017);
2) The relevant statutory provisions;
3) The relevant facts;
4) Was the POA in breach of the express terms of the Injunction?
5) Article 11 of the Convention: does Article 11 as interpreted in Ognevenko, mean that the POA has a right, under the Convention, to induce, authorise or support industrial action, in a way that is prohibited by the Injunction?
6) Article 3: does Article 3 mean that the POA has a right, under the Convention, to support industrial action in a way that is prohibited by the Injunction?
7) Article 14 and s.44 of the ERA: does the Injunction mean that there is unlawful discrimination against prison officers contrary to the Convention because they are not free to absent themselves from the workplace because of serious...
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