The King (on the application of Associated Society of Locomotive Engineers and Firemen and 10 Others) v The Secretary of State for Business and Trade
| Jurisdiction | England & Wales |
| Judge | Mr Justice Linden |
| Judgment Date | 13 July 2023 |
| Neutral Citation | [2023] EWHC 1781 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/3337/2022 CO/3532/2022 |
[2023] EWHC 1781 (Admin)
THE HONOURABLE Mr Justice Linden
Case No: CO/3337/2022
CO/3346/2022
CO/3532/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Oliver Segal KC and Melanie Tether (instructed by Thompsons Solicitors LLP) for the Associated Society of Locomotive Engineers and Firemen & Others
Michael Ford KC Stuart Brittenden, and Serena Crawshay-Williams (instructed by UNISON Legal Services) for UNISON
Betsan Criddle KC and Madeline Stanley (instructed by in house solicitors at the NASUWT) for the National Association for Schoolmasters/Union of Women Teachers
Daniel Stilitz KC, Claire Darwin KC and Oliver Mills (instructed by Government Legal Department) for the Defendant
Hearing dates: 3 – 4 May 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on 13 July 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
THE HONOURABLE Mr Justice Linden
Table of Contents
| INTRODUCTION | 3 |
| GROUND 1 | 4 |
| The legislative framework | 4 |
| The central issues under Ground 1 | 6 |
| Analysis of the evidence/findings of fact | 7 |
| The 2015 Consultation | 7 |
| December 2015-November 2020 | 9 |
| 10–15 June 2022 | 12 |
| 16 June to 21 July 2022 | 17 |
| Caselaw on the duty to consult | 23 |
| Summary of the principal arguments of the parties | 31 |
| On behalf of the Claimants | 31 |
| On behalf of the Defendant | 33 |
| Discussion and conclusion on Ground 1 | 36 |
| The interpretation of section 12(2) of the 1973 Act | 36 |
| Did the Secretary of State take into account the responses to the 2015 Consultation? | 38 |
| The decision not to consult to consult further | 39 |
| Relief: section 31(2A) of the Senior Courts Act 1981 | 43 |
| Legal framework | 43 |
| The submissions | 46 |
| Discussion and conclusion | 46 |
| Conclusion on Ground 1 | 49 |
| GROUND 2 | 49 |
INTRODUCTION
From 1976 it was unlawful for an employment business knowingly to introduce or supply workers to an employer to carry out the work of employees who were taking part in official industrial action. Regulations made pursuant to section 5 of the Employment Agencies Act 1973 (“the 1973 Act”), most recently regulation 7 of the Conduct of Employment Agencies and Employment Businesses Regulations 2003 (SI 2003/3319 – “the 2003 Regulations”), made this a criminal offence.
In 2015, the Government conducted a public consultation on a proposal to revoke regulation 7. The majority of the responses did not favour this change in the law and, in 2016, it was decided not to go ahead. In June 2022, however, the Government decided, in the context of industrial action in the rail sector and other anticipated industrial action, that regulation 7 would be revoked without further public consultation. On 27 June 2022, the draft Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022 (SI 2022/852 – “the 2022 Regulations”) were therefore laid before Parliament, regulation 2(a) of which implemented this measure. The 2022 Regulations were made by the then Secretary of State for Business, Energy and Industrial Strategy (“BEIS”), Mr Kwasi Kwarteng, on 20 July 2022 and they came into effect on 21 July 2022.
In these three claims, 13 trade unions challenge the then Secretary of State's decision to make the 2022 Regulations. The challenge is on two grounds:
i) First, they say that he failed to comply with his statutory duty, under section 12(2) of the 1973 Act, to consult before making the 2022 Regulations (“Ground 1”).
ii) Second, it is contended that, by making the 2022 Regulations, the Secretary of State breached his duty, under Article 11 of the European Convention on Human Rights (“ECHR”), to prevent unlawful interference with the rights of trade unions and their members (“Ground 2”).
The Claims were supported by witness statements made by Mr Richard Arthur, Head of Trade Union Law at Thompsons Solicitors LLP, dated 9 September 2022; by Ms Christina McAnea, General Secretary of UNISON, dated 12 September 2022 and 7 February 2023; by Dr Patrick Roach, General Secretary of the NASUWT, dated 23 September 2022 and 8 February 2023; and by Mr Paul Watkins, a National Negotiating Official of the NASUWT dated 23 September 2022.
Both Grounds are contested by the Secretary of State:
i) In relation to Ground 1, he relies on the consultation which took place in 2015. But he also argues, under section 31(2A) of the Senior Courts Act 1981, that relief should be refused because it is “highly likely” that the outcome would not have been substantially different had there been further consultation.
ii) In relation to Ground 2, the Secretary of State denies that the revocation of regulation 7 amounted to an interference with the rights of trade unions and their members under Article 11 ECHR and he argues that, in any event, any such interference was proportionate.
The Secretary of State relies on a witness statement dated 17 January 2023 which was made by Mr James Stevens. Mr Stevens was deployed to BEIS in November 2020. Since July 2021 he has been the Deputy Director for Employment Rights and Enforcement in Labour Markets, in which capacity he is responsible for the legal framework relating to industrial action, as well as agency worker policy.
By Orders dated 7 December 2022, permission was given by Lieven J in relation to each of the three claims. She ordered that they be heard together and gave directions accordingly.
GROUND 1
The legislative framework
The overall statutory context is the Employment Agencies Act 1973, the preamble to which describes it as: “An Act to regulate employment agencies and businesses; and for connected purposes”. Until 1995 these types of businesses were required to be licensed, and the 1973 Act still contains powers of inspection by officers appointed by the Secretary of State (section 9) and machinery for enforcement by employment tribunals (section 3A) and through the criminal law.
Section 6 of the 1973 Act restricts, on pain of criminal sanction, the ability of employment agencies and businesses to charge those who are offering their services through such businesses (“work seekers”) unless they fall within any excepted category of case which the Secretary of State may prescribe. And section 5(1) provides that:
“The Secretary of State may make regulations to secure the proper conduct of employment agencies and employment businesses and to protect the interests of persons availing themselves of the services of such agencies and businesses and such regulations may in particular make provision—
(a) requiring persons carrying on such agencies and businesses to keep records;
(b) prescribing the form of such records and the entries to be made in them;
(c) prescribing qualifications appropriate for persons carrying on such agencies and businesses;
(d) regulating advertising by persons carrying on such agencies and businesses;
(e) safeguarding clients' money deposited with or otherwise received by persons carrying on such agencies and businesses;
(ea) restricting the services which may be provided by persons carrying on such agencies and businesses;
(eb) regulating the way in which and the terms on which services may be provided by persons carrying on such agencies and businesses;
(ec) restricting or regulating the charging of fees by persons carrying on such agencies and businesses.” (emphasis added)
Under section 5(2) of the 1973 Act, a person who fails to comply with a regulation made pursuant to section 5 is guilty of an offence and liable to a fine on conviction.
Section 12 provides, so far as material:
“ Regulations and orders.
(1) Subject to the next following subsection, the Secretary of State shall have power to make regulations for prescribing anything which under this Act is to be prescribed.
(2) The Secretary of State shall not make any regulations under this Act except after consultation with such bodies as appear to him to be representative of the interests concerned .
….
(5) Regulations under section 5( 1) or 6(1) of this Act shall not be made unless a draft has been laid before, and approved by resolution of, each House of Parliament….” (emphasis added)
The Conduct of Employment Agencies and Employment Businesses Regulations 2003 were made pursuant to these powers. They replaced and updated earlier statutory instruments to reflect changes in the recruitment sector and they contain detailed provisions regulating the sector. Regulation 7 appeared in Part II of the 2003 Regulations, which contains “General Obligations” of employment agencies and businesses such as: not to penalise work seekers for terminating their contracts and taking up employment elsewhere (regulation 6), restrictions on requirements for hirers to pay “transfer fees” in the event that the work seeker enters their employment (regulation 10) and measures to ensure that the work seeker gets paid (e.g. regulation 12). Regulation 7 provided as follows:
“ 7.—Restriction on providing work-seekers in industrial disputes
(1) Subject to paragraph (2) an employment business shall not introduce or supply a work-seeker to a hirer to perform–
(a) the duties normally performed by a worker who is taking part in a strike or other industrial action (“the first worker”), or
(b) the duties normally performed by any other worker employed by the hirer and who...
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