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Regulatory Reform (Prison Officers) (Industrial Action) Order 2005

Volume 670: debated on Tuesday 1 March 2005

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10.16 p.m.

My Lords, I beg to move the Motion standing in the name of my noble friend Lady Scotland of Asthal on the Order Paper. This regulatory reform order is brought forward under the Regulatory Reform Act 2001 by Her Majesty's Prison Service and the Home Office.

Section 127 of the Criminal Justice and Public Order Act 1994 provides that a person owes a duty to the Secretary of State not to induce prison officers, custody officers and prison custody officers to withhold their services or to commit a breach of discipline. Loss or damage caused to the Secretary of State by a person who induces a prison officer to withhold his service or to commit a breach of discipline is actionable by the Secretary of State against that person.

The change that is proposed is to amend Section 127 to disapply it in relation to inducements in respect of prison officers in England, Wales and Scotland. The disapplication of Section 127 will reinstate the full statutory trades union rights of prison officers in England, Wales and Scotland, thereby honouring a pre-election pledge from the Government that goes back to 1997.

The former Home Secretary, David Blunkett, reinforced that commitment at the Prison Officers' Association annual conference in May 2003. Between 1997 and the present day there has been a much improved relationship between the prison services in both England and Wales and under Scottish jurisdiction and the Prison Officers' Association (POA). That improved relationship resulted in both the POA and the Prison Service in England and Wales signing a contractually binding agreement that resulted in third-party dispute resolution through an independent arbitrator tied to a no-strike agreement.

That agreement, which was known as the voluntary agreement, was signed in 2001 and provided in Clause 4(11) that the Prison Officers' Association would not induce, authorise or support any form of industrial action by any of its members relating to a dispute concerning any matter whether covered by the voluntary agreement or otherwise, which would have had the effect of disrupting the operations of the Prison Service and both parties will use their best endeavours to prevent any form of industrial action.

The Prison Officers' Association gave notice of termination of the voluntary agreement on 27 January last year, which underpinned the proposal to disapply Section 127 so far as England and Wales jurisdiction is concerned. However, a new, legally enforceable, collective agreement between the Prison Service and the POA is now in place, and provides protections equivalent to the voluntary agreement. In Scotland, the Scottish Prison Service entered into its own voluntary industrial relations agreement in December 2001 with each of the trades unions that it recognises for collective bargaining purposes. In respect of the Prison Officers' Association, the voluntary industrial relations agreement is similarly legally binding to the extent that the POA has contracted not to induce, authorise or support any form of industrial action by its members. The POA has not given notice to withdraw from the voluntary industrial relations agreement in Scotland where there appears to be a continuing degree of satisfaction on the part of the Scottish Prison Service and the POA with the arrangement in place.

There is no legally enforceable collective agreement in place in Northern Ireland between the Northern Irish prison service and the Prison Officers Association similar to those in place in England and Wales and Scotland. Therefore, this prevents the Secretary of State from disapplying Section 127 from this group of workers as there will be no necessary protection in place following disapplication.

In the England and Wales and Scotland prison services an atmosphere of joint working and consultation has been fostered, which has borne fruit in terms of better dialogue and an open approach to contentious issues. At the same time the legally enforceable collective agreements tie the parties in both jurisdictions into formal dispute resolution procedures which include recourse to ACAS conciliation and independent binding arbitration.

In the event of the POA giving notice to terminate the legally enforceable collective agreement in circumstances where further agreement was not possible, the Secretary of State would seek during the 12-month period of notice of withdrawal from the agreement to reapply Section 127 through primary legislation.

The Secretary of State considers the disapplication of Section 127 as the final step to cementing the positive industrial relations between the POA and the prison services in England and Wales and Scotland.

There have been two periods of consultation on this proposal. The initial consultation period ran from 15 December 2003 to 9 February last year. In the light of representations received during the initial round, changes were made to the proposals in line with Section 6(2)(1) of the 2001 Act.

One important issue was raised by a consortium of private custodial service providers. It stated that if Section 127 of the Criminal Justice and Public Order Act in England and Wales and Scotland were removed in its entirety, there would be no necessary protection in place in its prisons because it did not have legally enforceable collective agreements of the kind that obtained in the public sector service in England and Wales and Scotland.

The Secretary of State accepted the consortium's point and took the decision to amend the proposed order so as not to disapply Section 127 in respect of prison officers in Northern Ireland and prison custody officers employed by the private sector, wherever they may be employed in the United Kingdom.

The further consultation period ran from 26 March until 21 May last year. No materially adverse responses were received to the revised proposals. These proposals have been scrutinised by respective parliamentary committees. Your Lordships' Select Committee on Delegated Powers and Regulatory Reform concluded that the proposals within the meaning of the Regulatory Reform Act 2001 do not create any new burdens.

The department also demonstrated to the satisfaction of the committee that the proposal would neither confound any reasonable expectations nor reduce any necessary protections.

I should like to place on record my thanks to members of the Select Committee for the time and consideration they have given in scrutinising the proposals and for recommending the proposals to your Lordships' House. I beg to move.

Moved, That the draft regulatory reform order laid before the House on 17 January be approved [8th Report from the Regulatory Reform Committee].—(Lord Bassam of Brighton.)

My Lords, while we broadly welcome the thrust of this order, I draw the Minister's attention to the rider at page 7 from the Delegated Powers Committee. I should like his reassurance that there will be no interruption in protection should for any reason the agreements fail and Section 127 was reinstated. At paragraph 7 the committee mentioned the possibility of this happening in a Recess. Can I have an assurance again that Section 127 would be in place in time? The committee's further rider is that if negotiations for the continuance of an agreement were in progress, the Government would give ample time for the reinstatement of Section 127 to take account of those negotiations failing.

My Lords, the noble Viscount asks an important and sharp question. He is right: this issue has been raised before.

It is fair to say that in the unlikely event that the Government were to encounter any problems, it is fully within their power to reintroduce Section 127. The noble Viscount asks what would happen if Parliament were in Recess when it wished to reintroduce the application of Section 127. The answer is that the legally binding collective agreement has a clause in it which both sides have signed up to, which must mean that there is a minimum 12-month period of notice to quit the agreement, so there would obviously be a 12-month period during which the Government could reinstitute Section 127. It is extremely unlikely that there would be any great difficulty in conforming with that. The Government have no hesitation in bringing forward legislation to ensure that that protection is there. That is our intention.

On Question, Motion agreed to.

House adjourned at twenty-six minutes after ten o'clock.